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THE  TRANSITIONAL  PERIOD,  1788-1789, 

IN  THE  GOVERNMENT  OF  THE 

UNITED  STATES 


A  Tliesis  Presented  to  the  Faculty  of  the  Graduate  School  of  the 

University  of  Pennsylvania,  in  Partial  Fulfillment 

of  the  Requirements  for  the  Degree  of 

Doctor  of  Philosophy 


By 

FRANK  FLETCHER  STEPHENS 


Columbia,  Mo, 

E.  W,  Stephens  Publishing  Company 

1909 


THE  TRANSITIONAL  PERIOD,  1788-1789,  IN  THE 
GOVERNMENT  OF  THE  UNITED  STATES 


It' 


THE  TRANSITIONAL  PERIOD,  1788-1789, 

IN  THE  GOVERNMENT  OF  THE 

UNITED  STATES 


A  Thesis  Presented  to  the  Faculty  of  the  Graduate  School  of  the 

University  of  Pen7isylvania,  in  Partial  Fulfillment 

of  the  Requirements  for  the  Degree  of 

Doctor  of  Philosophy 


By 

FRANK  FLETCHER  STEPHENS 


Columbia,  Mo. 

E.  W.  Stephens  Publishing  Company 

1909 


Copyright,  1909,  hy 
THE  UNIVERSITY  OF  MISSOURI 


CONTENTS 

I.     Introduction 

II.     The  First  Election  OF  United  States  Senators    .     lo 

III.  The  First  Election  of  United  States  Representa- 

tives          ^ 

IV.  Presidential  Electors ^7 

V.    Adjustment  of  Various  Federal  and  State  Rela- 
tions IN  1789 ^^ 

Bibliography ^°7 

Index        . ^°9 


PREFACE 

This  study  is  a  revision  and  enlargement  of  a  monograph 
which  was  accepted  by  the  Faculty  of  the  Graduate  School  of 
the  University  of  Pennsylvania  in  partial  fulfillment  of  the  re- 
quirements for  the  degree  of  Doctor  of  Philosophy.  It  was 
undertaken  at  the  suggestion  of  Professor  John  Bach  McMas- 
ter  while  the  author  was  a  Harrison  Fellow  in  the  University 
of  Pennsylvania,  and  is  an  intensi\'e  study  of  the  short  period 
in  United  States  history  following  the  ratification  of  the  Con- 
stitution of  1787  and  previous  to  the  organization  of  the  fed- 
eral government  in  the  spring  of  1789. 

The  author  desires  to  acknowledge  his  indebtedness  to  the 
library  staff  of  the  University  of  Pennsylvania  and  also  to  that 
of  the  Historical  Society  of  Pennsylvania  for  courteous  assist- 
ance in  gathering  the  material;  and  to  his  several  colleagues 
and  former  teachers  for  frequent  valuable  suggestions  and  ad- 
vice. 

University  of  Missouri,  July,  1909.  F.  F.  S. 


CHAPTER  I 

INTRODUCTION 

Transitional  periods,  if  unaccompanied  by  violent  commo- 
tions, receive  scant  attention  while  yet  uncompleted,  and  are  fully 
recognized  only  after  a  new  epoch  has  been  ushered  in.  Atten- 
tion is  always  focused  upon  the  present  dimly  related  to  the  past 
or  future  and  it  is  only  when  one  stops  to  compare  the  present 
with  a  distinct  time  past — five,  ten,  twenty  or  a  hundred  years 
that  the  change  of  conditions  is  at  once  apparent.  Especially 
is  this  true  in  any  particular  field  if  a  distinct  transitional  period 
has  occurred  in  the  interim.  Such  a  period,  in  the  political  and 
constitutional  history  of  America,  was  the  few  months  during 
which  the  government  under  the  Articles  of  Confederation  quietly 
gave  way  to  the  "more  perfect  union"  under  the  Constitution. 

The  Articles  of  Confederation,  rudely  formed  during  a  strug- 
gle for  bare  existence,  by  men  patriotic  but  inexperienced  in  the 
government  of  a  nation,  were  not  adapted  to  the  needs  of  the 
time,  and  proved  inadequate  for  an  era  of  peace.  Even  before 
final  ratification  by  all  the  states  an  amendment  to  increase  the 
authority  of  the  central  government  by  giving  Congress  the  right 
to  levy  a  five  per  cent  duty  on  imports  had  been  offered,  only  to 
be  rejected,  and  later  efforts  to  amend  were  equally  in  vain. 
Each  of  the  thirteen  states  retained  the  sovereign  rights  of  coin- 
ing money,  raising  armies  and  taxing  imports  and  exports.  It 
was  to  remedy  such  defects  as  these  that  the  Convention  of  1787 
put  forth  the  new  Constitution. 

The  threefold  purpose  of  this  monograph  is  to  trace  the  re- 
linquishment by  the  separate  states  of  these  powers  into  the  hands 
of  the  federal  government,  to  discuss  the  political  and  constitu- 
tional questions  involved  in  consequence  of  this  transfer  of  power, 

(I) 


2  UNIVERSITY  OF  MISSOURI  STUDIES 

and  to  show  the  awkwardness  and  lack  of  uniformity  with  which 
the  states  did  their  part  toward  putting  the  new  government  into 
operation. 

A  great  weakness  of  the  Articles  of  Confederation  was  the 
provision  requiring  unanimous  consent  of  the  states  to  changes 
in  the  Articles/  a  provision  which  had  defeated  the  impost, 
revenue  and  commerce  amendments.  The  members  of  the  Con- 
vention of  1787,  therefore,  fresh  from  these  past  defeats,  pro- 
vided in  the  seventh  article  of  the  Constitution  that  the  ratifi- 
cation by  the  conventions  of  nine  states  should  be  sufficient  for 
the  establishment  of  the  Constitution  between  the  states  so  rati- 
fying, a  provision  as  necessary  as  it  was  revolutionary.  But  to 
preserve  legal  forms  as  far  as  possible,  and  to  get  the  result  of 
its  work  before  the  states,  the  Convention  resolved  on  September 
17  to  submit  the  Constitution  to  Congress,  to  be  transmitted  by 
it  to  the  various  states  in  convention  assembled.  And  in  order 
to  insure  that  the  Constitution  be  put  into  actual  operation  when 
ratified  by  the  requisite  number  of  states,  Congress  was  asked 
to  fix  a  day  upon  which  electors  should  be  appointed,  a  day  upon 
which  they  should  assemble  to  cast  their  votes  for  a  president, 
and  the  time  and  place  for  commencing  proceedings  under  the 
new  Constitution. 

Congress,  then  sitting  at  New  York,  received  the  Consti- 
tution and  accompanying  resolves  on  September  28,  1787^  and 
immediately  transmitted  them  without  comment  ~  to  the  various 
state  legislatures  to  be  referred  by  these  last  to  state  conventions. 
The  ensuing  ten  months  proved   a  period  of  triumph   for  the 

'Article  XIII. 

*  "Congress  having  three  states  represented  by  those  who  were  mem- 
bers of  Convention,  and  three  of  the  most  influential,  each  in  three  other 
states,  resolved  to  send  it  on  veithout  any  recommendation,  because  its 
opponents  insisted  upon  having  their  reasons  on  the  journals,  if  they  offer 
ed  to  recommend  it".  Arthur  Lee  to  John  Adams,  October  3,  1787. 
Adams'  Adams,  IX.   51:5. 


THE    TR.\NSITIONAL    TERIOD,    1 788,    1 789  3 

supporters  of  the  proposed  Constitution.  Commencing  with  Del- 
aware on  Deceniiber  6,  1787,  one  after  another  of  the  states  took 
favorable  action,  until  finally  on  June  21,  1788,  the  ratification 
by  New  Hampshire  made  the  ninth  state.  It  now  became  the 
duty  of  Congress  to  decide  upon  the  details  for  putting  the  new 
government  into  operation. 

New  Hampshire's  ratification  was  received  at  New  York 
July  2.  The  question  of  putting  the  new  government  into  opera- 
tion was  immediately  referred  to  a  committee  composed  of  Car- 
rington  of  Virginia,  Edwards  of  Connecticut,  Baldwin  of  Georgia, 
Otis  of  Massachusetts  and  Tucker  of  South  Carolina.  This  com- 
mittee reported  July  14,  proposing  that  the  day  for  the  appoint- 
ment of  presidential  electors  be  the  first  Wednesday  in  the  fol- 
lowing December,  A  proposition  was  made  to  amend  this,  by 
which  the  two  states  with  the  furthest  outlying  counties,  Virginia 
and  North  Carolina  (providing  the  latter  should  have  ratified), 
should  appoint  electors  on  the  first  Wednesday  in  December,  the 
three  large  states  of  Massachusetts,  Pennsylvania,  New  York 
(providing  the  last  should  have  ratified)  and  the  far-off  state 
of  Georgia  on  the  third  Wednesday,  and  the  remaining  states  on 
the  fourth  Wednesday.  This  amendment,  apparently  looking  to 
the  people  for  the  choice  of  electors,  was  easily  negatived,  only 
Connecticut  and  Georgia  favoring  it. 

By  July  28  the  report  of  the  committee  had  been  debated 
and  amended  to  read  as  follows :  "That  the  first  Wednesday  in 
January  next  be  the  day  for  appointing  electors  in  the  several 
states,  which  have  or  shall  before  the  said  day  have  ratified  the 
said  Constitution;  that  the  first  Wednesday  in  February  next  be 
the  day  for  the  electors  to  assemble  in  their  respective  states,  and 
vote  for  a  president ;  and  that  the  first  Wednesday  in  March  next 

be  the  time,  and the  place,  for  commencing  proceedings 

under  the  said  Constitution. "^ 

^Journals  of  Congress,  edited  1S23,  XIII.  57. 


4  UNIVERSITY  OF  MISSOURI  STUDIES 

Although  seven  more  weeks  went  by  before  Congress  was 
able  to  decide  upon  the  seat  of  the  new  government,  no  attempt 
seems  to  have  been  made  to  change  the  time  as  accepted  in  this 
amended  report.  The  long  delay  was  the  result  in  part  of  the 
unusual  requirements  necessary  to  carry  any  proposition  in  Con- 
gress; and  exhibits  one  of  the  weaknesses  of  the  Articles;  it  was 
necessary  that  a  majority  of  the  thirteen  states  represented  by 
two  or  more  delegates  vote  in  the  affirmative,  no  matter  how 
many  states  were  absent  at  the  time,  or  how  many  gave  a  divided 
vote.  But  there  were  still  other  reasons  for  the  indecision.  The 
partisans  of  New  York  city  had  been  studiously  promoting  delay 
until  news  might  come  of  the  ratification  by  the  state  convention 
at  Poughkeepsie,  a  necessity  before  New  York's  claims  could  be 
urged.  Earnest  supporters  of  the  new  Constitution,  even  if  free 
from  this  sectional  feeling,  had  another  and  stronger  reason  for 
delay;  the  existing  state  legislatures  were  probably  everywhere 
less  Federal  than  the  new  legislatures  to  be  elected  in  the  autumn. 
If  Congress  should  at  once  send  notice  to  the  states  of  the  neces- 
sary arrangements  to  be  made  for  putting  the  new  government 
into  operation,  it  might  afford  a  pretext  to  convene  the  existing 
legislatures  in  extra  session,  and  thus  result  in  measures  un- 
friendly to  the  new  government.^ 

The  contest  was  one  between  New  York  and  a  more  cen- 
tral point,  preferably  Philadelphia,  though  several  other  places 
were  suggested  from  time  to  time.  Upon  the  first  vote  Phila- 
delphia was  favored  by  six  states  and  would  have  been  chosen 
had  not  a  delegate  from  Delaware,  who  really  favored  Phila- 
delphia, divided  the  vote  of  his  state  in  order  to  have  a  trial  ballot 
taken  upon  Wilmington.^  Consideration  of  New  York  was  next 
proposed  but,  on  motion,  postponed  to  try  the  strength  of  Lan- 
caster and  Baltimore.  The  former  failed,  but  to  the  general  sur- 
prise, the  latter  obtained  the  necessary  seven  votes."^     As  few 

<  Madison  to  Washington,  July  21,  17SS.  Writings  of  Madison,  V.  238. 
*  Madison  to  Jefferson,  August  10,  17SS.  Writings  of  Madison,  V.  245. 
6  Ibid. 


THE    TR.\NSITIONAL    TERIOD,    1 788,    1 789  5 

seriously  urged  the  eligibility  of  Baltimore,  it  was  plain  the  ques- 
tion was  not  yet  settled.  The  debate  was  resumed  on  August 
5  and  6  and  the  supporters  of  New  York  urged  their  claims. 
They  admitted  that  a  central  situation  would  be  more  proper  but 
insisted  that  necessary  accommodations  should  be  furnished,  and 
that  such  a  place  should  be  free  from  objections  which  might 
render  it  improper  or  unlikely  to  be  a  fit  place  for  the  capital, 
either  permanently  or  until  a  fit  place  could  be  agreed  upon. 
To  insure  such  a  location  it  was  urged  that  permanent  decision 
be  left  to  the  new  Congress,  as  being  a  body  less  influenced  by 
local  attachments  and  less  embarrassed  by  want  of  time  and 
means.  Furthermore,  the  removal  of  the  public  offices  would  be 
attended  with  much  expense,  danger  and  inconvenience,  not  coun- 
terbalanced by  the  advantages  of  any  place  at  that  time  in  a  fit 
condition  to  receive  them.  And  finally,  since  unnecessary  changes 
of  the  seat  of  government  would  indicate  instability  and  prove  in- 
jurious to  the  interests  as  well  as  derogatory  to  the  dignity  of 
the  United  States,  it  was  moved  that  New  York  be  decided 
upon  as  the  place  for  commencing  proceedings. 

In  opposition  to  this,  it  was  declared  that  the  .seat  of  gov- 
ernment should,  at  the  very  outstart,  be  placed  as  near  the  center 
of  the  Union  as  possible.  There  were  three  reasons  for  this: 
first,  that  its  influences  and  benefits  might  be  felt  equally  through- 
out the  whole  country ;  second,  that  persons  having  business  there 
might  approach  with  equal  convenience  from  the  opposite  ex- 
tremes (a  powerful  argument  in  those  days  of  wretched  travel- 
ing accommodations) ;  and  third,  that  there  might  not  be  even 
the  appearance  of  partiality.  New  York,  whether  population 
or  distance  was  considered,  was  shown  to  be  far  removed  from 
the  center  of  the  Union.  Further,  the  new  Senate  was  to  have 
only  eight  members  from  east  of  New  York,  while  sixteen  were 
to  come  from  the  South;  and  of  the  new  House  of  Representa- 
tives, seventeen  were  to  come  from  the  East  and  forty-two  from 
the  South.     The  distance  between  New  York  and  the  extreme 


O  UNIV'ERSITY  OF  MISSOURI  STUDIES 

eastern  state  was  hardly  one-third  of  the  distance  to  the  extreme 
southern  state.  Finally,  the  appeal  was  made  to  the  eastern 
states  to  commence  the  new  government  in  the  same  spirit  of 
mutual  accommodation  and  mutual  confidence  which  had  hitherto 
marked  the  deliberations,  and  to  reject  a  measure,  which,  from 
its  seeming  undue  regard  for  local  considerations,  would  natur- 
ally occasion  jealousies  and  apprehensions.  As  a  substitute  for 
the  previous  motion,  it  was  then  moved  that  the  seat  of  the  new 
Congress  ought  to  be  in  some  place  to  the  southward  of  New 
York,  This  motion  was  negatived  seven  to  six.  South  Carolina 
and  New  Jersey  voting  with  the  northern  states.  Philadelphia, 
again  proposed,  was  voted  down,  Georgia  being  divided.  The 
question  recurring  on  the  original  motion  was  carried  seven  to 
five,  South  Carolina  and  New  Jersey  voting  with  the  northern 
states  and  Georgia  still  divided."^ 

Thus  amended  and  accepted  in  piecemeal,  the  ordinance  was 
finally  voted  upon  a  week  later,  August  13.  In  the  meantime, 
however,  the  Rhode  Island  delegates,  refusing  to  give  a  final  vote 
for  a  system  to  which  their  state  was  opposed,  had  gone  home.^ 
One  of  the  two  New  Jersey  delegates  was  also  absent,  so  the 
ordinance  failed  of  passage  by  two  votes.  Thus  the  whole  ques- 
tion had  to  be  taken  up  anew.  To  increase  the  difficulty,  the 
North  Carolina  delegates  had  just  heard  the  unfavorable  news 
of  the  adjournment  of  their  state  convention  without  ratifying 
the  Constitution,  and  so  refused  to  have  anything  more  to  do 
with  the  subject.  Neither  the  North  nor  the  South  could  now 
muster  seven  votes,  and  it  seemed  as  if  the  operation  of  the  new 
government  would  be  delayed,  if  not  finally  prevented,  by  in- 
flexibility and  jealousy. 

During  the  next  three  weeks  ballots  were  taken  on  New 
York,  Wilmington,  Lancaster  and  Annapolis,  but  the  requisite 
seven  votes  not  obtained  for  any  one  of  them.     By  this  time, 

^Journals  of  Congress,  XIII.  67-70. 
8  Writings  of  Madison,  V.  246. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  7 

Alexander  Hamilton  had  appealed  successfully  to  Governor  Wil- 
liam Livingston  of  New  Jersey^  to  instruct  the  delegates  from 
that  state  to  vote  for  New  York,  declaring  this  would  conduce  to 
the  permanent  establishment  of  the  Capital  in  New  Jersey.    The 
Virginia   delegates  becoming  aware  of  this  plan,  were  all  the 
mor^e  indisposed  to  yield  to  New  York,  feeling  that  the  Capital 
should  be  eventually  on  the  Potomac. ^o    Futile  efiforts  were  made 
on  the  second  and  fourth  of  September  to  settle  upon  a  time  in- 
dependent of  a  place.    It  was  felt  apparently  that  the  states  could 
proceed  with  their  arrangements  if  that  much  of  the  question  were 
decided.     This  plan  failed  for  the  want  of  one  vote.      At  this 
juncture,  to  make  the  situation  still  more  disagreeable,  the  Mary- 
land delegates  withdrew  "in  a  temper."!^     The  evident  disposi- 
tion of  the  northern  states  to  risk  or  sacrifice  everything  m  sup- 
port of  what  the  South  felt  to  be  an  unjustifiable  display  of 
favoritism  toward  their  locality,  was  extremely  irritating  to  the 

southerners. 

No  more  proceedings  on  the  subject  occurred  until  Septem- 
ber 12.  On  that  day  it  was  again  moved  that  the  "present  seat 
of  Congress"  be  the  place  for  commencing  proceedings.  The 
preamble  recited  in  part,  "longer  delay  in  executing  the  previous 
arrangements  necessary  to  put  into  operation  the  federal  govern- 
ment, mav  produce  national  injury."^^  a  substitute  motion  provid- 
ing that  a  more  central  place  be  chosen,  but  leaving  the  place 
blank,  was  lost.     At  this  point  the  Virginia  and  Pennsylvania 

»  Works  of  Alexander  Hamilton,  Federal  edition,  IX.  442- 
'0  Madison  to  Washington,  August  is.  17SS.  Writings  of  Madison,  V. 
248  Madison  wrote  a  long  letter  to  Washington  on  August  24,  reviewing 
the  whole  situation  and  offering  reasons  in  favor  of  Philadelphia  whtch 
Washington  characterized  as  conclusive.  Writings  of  Madison.  V.  256.  and 
writings  of  Washington,  Sparks'  edition,  IX.  433- 

H  Writings  of  Madison,  V.  260.     The  Journals  of  Congress  record  the 
Maryland  delegates  as  being  present  on  Sept.  S  but  not  later. 
12  Journals  of  Congress,  XIII.  102. 


8  UNIVERSITY  OF  MISSOURI  STUDIES 

delegates,  feeling  that  no  alternative  remained  but  to  "agree  to 
New  York  or  to  strangle  the  government  in  its  birth"^^  yielded. 
The  two  delegates  from  Delaware  moved  to  strike  out  "and  the 
present  seat  of  Congress  the  place,"  and  on  the  motion  as  to 
whether  these  words  should  stand,  those  two  states  and  Georgia 
(which  had  usually  been  divided  hitherto)  supported  the  northern 
states.  As  the  final  question  was  about  to  be  put,  Delaware 
asked  and  obtained  postponement  until  the  following  day.  On 
that  day,  September  13,  by  the  unanimous  vote  of  nine  states 
(Rhode  Island,  Delaware,  Maryland  and  North  Carolina  not 
voting)  the  arrangements  were  finally  completed.  Electors  were 
to  be  appointed  on  the  first  Wednesday  in  January,  they  were 
to  cast  their  votes  for  president  on  the  first  Wednesday  in  Feb- 
ruary, and  the  new  government  was  to  commence  operations  in 
New  York  city  on  the  first  Wednesday  in  March,  1789. 

This  resolution,  immediately  announced  to  the  states,  was 
received  with  general  approbation.  It  had  been  expected  for 
weeks  and  the  delay  was  beginning  to  cause  considerable  uneasi- 
ness among  the  friends  of  the  new  government.  Washington 
wrote  to  Madison  that  the  matter  had  already  become  the  source 
of  clamor  and  might  give  advantages  to  the  Antifederalists.^^ 
But  previous  to  this,  Madison  had  written  to  Pendleton  that  he 
had  been  ready  for  some  time  to  conclude  the  contest,  perceiving 
that  further  delay  could  only  discredit  Congress  and  injure  the 
cause,  but  that  his  colleagues  had  not  been  able  to  overcome  their 
repugnance  to  New  York.^^  The  newspapers  had  been  com- 
plaining for  some  time.  The  New  Jersey  Journal  for  September 
10  declared  that  the  pernicious  effects  of  the  delay  would  be 

'3  Writings  of  Madison,  V.  261. 

'<  Washington  to  Madison,  September  23,  1788.  Sparks'  Washington, 
IX.  433- 

'5  Madison  to  Pendleton,  September  14,  17SS.  Writings  of  Madison, 
V.  260. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  9 

Strongly  felt  in  all  parts  of  the  Union.  The  Connecticut  Courant 
for  August  25,  complaining  that  sufficient  time  for  framing  the 
necessary  act  had  more  than  elapsed,  said,  "The  delay  does  not 
give  satisfaction  to  the  Masters  of  Congress,  The  People,  who 
scruple  not  to  attribute  it  to  motives,  which  it  is  to  be  hoped  do 
not  exist." 

Upon  the  final  passage  of  the  act,  complaints  ceased  and 
attention  was  turned  from  Congress  to  the  state  legislatures.  All 
classes  began  to  speculate  on  such  new  questions  as  the  time  of 
election,  the  mode  of  election  and  the  candidates  for  office. 


CHAPTER  n 

THE    FIRST    ELECTION-    OF    UNITED    STATES    SENATORS 

Of  the  three  elections  necessary  in  order  to  put  the  machin- 
ery of  the  new  government  into  operation,  namely  those  for 
electors,  representatives  and  senators,  that  of  the  last  attracted 
the  least  attention.  This  was  undoubtedly  because  the  people  had 
no  direct  part  in  the  choice.  Within  the  respective  state  assem- 
blies, the  action  taken  was  usually  a  perfunctory  registration  of 
votes  for  men  more  or  less  important  in  the  local  political  life. 

The  action  of  the  legislatures  differed  in  one  interesting  but 
hardly  important  particular— the  preparatory  proceedings  for  the 
senatorial  election.  Some  states  passed  specific  acts,  similar  in  all 
respects  to  legislative  acts  requiring  the  approval  of  the  executive, 
providing  for  the  day,  manner  and  place  of  the  election.  Other 
states  settled  these  matters  by  a  simple,  brief  joint  or  concurrent 
resolution. 

Beside  the  passing  interest  in  the  result  of  the  vote,  a  ques- 
tion of  permanent  importance  had  to  be  decided.  This  was 
whether  the  election  should  be  by  vote  of  the  two  houses  of  assem- 
bly in  joint  session  or  in  separate  sessions.  In  many  of  the  states 
the  former  method  had  been  used  in  the  election  of  state  execu- 
tive officials,  militia  officers  or  members  of  the  judiciary,  and 
that  custom  was  now  quoted  as  a  precedent  for  the  manner  of 
the  election  of  senators.  As  a  result  the  majority  of  the  legisla- 
tures elected  by  joint  ballot.  In  those  few  states  in  which  a  con- 
test ensued,  it  usually  terminated  in  favor  of  the  contention  of  the 
upper  house  for  an  election  by  concurrent  vote. 

The  first  state  to  take  action  upon  this  election  as  well  as 
upon  those  for  representatives  and  for  electors,  was  Pennsyl- 
vania. No  complications  between  an  upper  and  lower  house 
arose,  for  at  that  time  the  state  constitution  of  1776,  with  its  pro- 

(10) 


THE    TRAXSITIONAL    PERIOD,     I788,     I789  II 

vision  for  an  assembly  of  a  single  house,  was  still  in  force.  The 
committee  on  the  Federal  government,  appointed  September  i8, 
1788,  reported  a  bill  five  days  later  for  the  election  of  represen- 
tatives and  electors,  and  with  the  bill  a  resolution  providing  that 
the  following  Tuesday,  September  30,  be  assigned  for  the  election 
of  two  United  States  senators.  Although  some  objection  to  such 
prompt  action  was  made,  the  resolution  was  accepted,  it  being 
argued  that  this  was  a  part  of  the  great  system  for  which  the 
assembly  was  making  provision,  and  action  could  not  prudently  be 
deferred. 1  Previous  to  the  election  three  men  were  placed  in 
nomination,  Robert  Morris,  General  Irvine  and  William  Maclay. 
On  the  appointed  day  sixty-seven  assemblymen  were  present,  and 
each  voted  for  two  persons.  The  first  and  only  ballot  resulted 
in  sixty-six  votes  for  Maclay,  thirty-seven  for  Morris  and  thirty- 
one  for  Irvine.  Maclay  and  Morris  were  therefore  declared 
elected.2 

The  new  state  constitution  providing  for  a  bicameral  legis- 
lature went  into  effect  in  the  autumn  of  1790,  and  in  the  selec- 
tion of  a  successor  to  William  Maclay,  whose  term  of  office  ex- 
pired March  4,  1791,  a  famous  quarrel  between  the  houses  ensued. 
The  question  seems  not  to  have  arisen  until  February  28,  1791, 
when  a  resolution  was  introduced  in  the  state  senate,  "That  both 
houses  of  the  General  Assembly  meet  in  the  Senate  chamber  on 
Thursday  the  third  of  March  next,  for  the  purpose  of  electing, 
by  joint  vote,  a  Senator  to  represent  this  state  in  the  Senate  of 
the  United  States,  and  that  the  mode  of  conducting  the  present 
election  shall  not  be  drawn  into  a  precedent  or  example  to  govern 
any  future  election. "^  This  was  negatived.  On  March  19, 
another  resolution  "that  if  the  House  of  Representatives  agree 

'  Lloyd's  Debates,  IV.   216. 

2  Minutes  of  the  Assembly  of  Pennsylvania. 

3  This  and  the  following  actions  are    taken    from    the   Journals   of   the 
Senate  and  of  the  House  of  Representatives  of  Pennsylvania. 


12  UNIVERSITY  OF  MISSOURI  STUDIES 

thereto be  and  he  is  hereby  chosen  by  the  legislature  of  this 

commonwealth  one  of  the  Senators  to  represent  this  common- 
wealth in  the  Senate  of  the  United  States,"  was  introduced  but 
not  carried.  Finally  on  March  22,  the  state  senate  passed  the 
following  resolve:     "That  on  the  31st  of  March,  the  Senate  and 

House  of  Representatives w-ill  proceed  to  the  election  of  a 

Senator,  in  the  Congress  of  the  United  States,  to  supply  the 
vacancy  in  that  body,  made  by  the  expiration  of  the  period  for 
which  William  Maclay,  one  of  the  Senators,  was  elected,  and 
that  the  manner  of  choosing  such  Senator  shall  and  is  hereby 
prescribed  to  be,  that  each  House  shall  choose  the  Senator  by 
a  viva  voce  vote  in  each  House,  and  that  should  the  Senate  and 
House  of  Representatives  disagree,  each  House  may  report  its 
choice  of  a  Senator  until  they  agree  in  the  choice  of  one  and 
the  same  person,  and  that  the  name  of  the  person  chosen  shall 
be  inserted  in  a  resolution  to  be  agreed  to  by  each  House."  On 
March  26,  this  resolution  was  read  in  the  house,  and  then  ignored 
till  April  II  (long  after  the  date  prescribed  by  the  resolution 
for  the  election),  when  it  was  rejected.  On  motion  of  Gallatin 
the  house  then  resolved,  "That  on  the  twelfth  inst.,  at  twelve 
o'clock,  the  Senate  and  House  of  Representatives  will  meet  in 
the  Senate  chamber,  and  then  and  there  proceed  (by  joint  vote 
of  the  members  of  both  Houses  then  present)  to  the  election  of 
a  Senator  in  the  Congress  of  the  United  States."  This  was  imme- 
diately sent  to  the  senate,  but  received  no  attention,  and  the 
assembly  adjourned  two  days  later  until  August. 

When  the  assembly  met  in  August,  1791,  a  conference  com- 
mittee was  immediately  appointed  by  both  houses  in  order  if 
possible  to  come  to  some  compromise.  On  September  9  the 
house  committee  reported  that  the  joint  committee  had  held  sev- 
eral conferences,  the  result  of  which  was  that  the  senate  com- 
mittee contended  for  a  concurrent  vote,  while  it  believed  that 
the  spirit  of  the  Constitution,  the  expediency  of  the  case  and  the 
example  of  a  great  majority  of  the  states,  all  united  in  support  of  a 


THE   TR,\NSmONAL    PERIOD,    1788,    I789 


13 


ioint  vote.  On  the  same  day  the  senate  committee  reported  the  dis- 
agreement, whereupon  it  was  resolved  by  a  vote  of  nme  to  e.ght 
that  on  the  next  Tuesday,  September  13.  the  senate  would  pro- 
erf  to  the  choiee  of  a  senator.    The  day  foUowmg,  the  house 
approved  the  conduct  of  its  committee  and  passed  as  a  resolu^on, 
"the  members  of  this  house  in  conjunction  wth  the  members 
of  the  Senate,  will  proceed  to  the  election  of  a  Senator. . .  _.  .on 
Wednesdav  next."     On  the  thirteenth,  the  senate  rejected  th.s 
Solution  of  the  house,  but  when  its  own  order  of  the  day  wa 
called  up,  action  was  postponed.     A  few  days  '^ter    he  hou. 
attempted  .0  break  the  deadlock  by  passmg  a  «g"'^^ /" /^ 
scribing  the  manner  of  election.    The  senate  amended  the  b.U 
by  providing  for  the  election  by  concurrent  vote,  an  amendment 
which   the  liouse    refused    to   accept,   and   before   any    further 
action  could  be  taken  the  assembly  adjourned. 

Soon  after  adjournment,  there  appeared  an  art.cle  m  the 
public  press  giving  the  reasons  why  a  minority  in  the  house 
favoL  the  senate  amendment.    It  was  argued  that  suK-e  Umted 
States  senators  were  to  be  chosen  by  the  legislature,  and  smce 
fh    legislature  of  Pennsylvania  consisted  of  two  houses,  the  cho.ce 
should  be  effected  in  the  same  manner  that  every  other  legislatw 
act  was  done.    A  choice  by  joint  vote  would  be  a  cho.ce  b      .. 
houses  acting  together,  not  a  choice  by  the  Icpslatwe     It  was 
u    her  decirred'that  the  action  by  the  lower  branch  of  the^g- 
islature  signified  "an  attachment  to  the.r  own  house    a  des.re 
to  extend'its  influence,  and  an  inclination  to  w-st  the  pow 
of  the  senate  out  of  their  hands.-     A  defense  of  the  house 
maioritv   for   rejecting   the   senate   amendment   also   appeared, 
m  le    t  was  virtually  admitted  that  either  method  was  const>- 
utional    since  senators  elected  by  both  methods  had  been  ad- 
m  ted  to  Congress,  yet  in  view  of  the  fact  that  a  deadlock  m.gh 
Tc  ur  if  the  dection  were  by  concurrent  vote  the  exped.ency  of 


Dunlap's  Daily  Advertiser,  October  3, 


[791. 


14  UNIVERSITY  OF  MISSOURI  STUDIES 

the  joint  session  method  was  urged.  It  was  also  claimed  that 
the  spirit  of  the  Constitution  favored  a  system  in  which  every 
member  of  the  legislature  had  an  equal  voice,  not  a  system  in 
which  a  member  of  the  senate  had  four  times  the  vote  of  a 
representative,  as  was  the  case  in  election  by  concurrent  vote.^ 

It  was  thought  that  Governor  Mifflin  might  now  appoint  a 
senator  to  fill  the  vacancy,  until  the  two  houses  could  come  to 
an  agreement.^  This  he  did  not  do,  however,  not  feeling  sure 
of  his  authority.  But  when  the  new  assembly  met  in  December, 
1791,  he  attempted  to  stir  it  to  action  by  declaring  in  his  message 
that  the  thing  of  prime  importance,  demanding  first  attention, 
was  the  choice  of  a  senator.'^  Notwithstanding  this  official  prod, 
the  session  was  but  a  repetition  of  previous  ones — rejected  bills 
and  resolutions,  barren  conferences  and  addresses  to  the  people. 

The  next  assembly  met  December  4,  1792.  The  senatorial 
question  came  up  at  once,  and  after  several  considerations  of  the 
subject,  a  bill  was  introduced  in  the  house,  December  17,  again 
advocating  the  joint  session  method.  The  bill  passed  the  house 
on  the  twenty-eighth  and  was  immediately  sent  to  the  senate  where 
it  suffered  an  even  harder  fate  than  its  predecessors,  being  flatly 
rejected  without  consideration.  The  senate,  apparently,  had  lost 
all  patience,  and  on  January  15,  1793,  it  proceeded  to  elect  a 
senator  according  to  its  own  method.  Eighteen  members  were 
present,  but  eight  declined  to  vote,  entering  their  reasons  in  full 
on  the  Journals.^  The  other  ten  members  gave  a  unanimous 
vote  to  James  Ross.  When  this  action  was  conveyed  to  the 
house,  that  body  declared  by  a  vote  of  forty-four  to  eleven  that 

*Dunlap's  Daily  Advertiser,  October  4,  1791. 

*The  Mail,  October  4,  1791. 

7  Pennsylvania  Archives,  Series  4,  IV,  201. 

*  Journals  of  the  senate  of  Pennsylvania,  IK.  70.  The  senate,  fiirough- 
out  the  twoyearsof  this  contest,  had  been  very  closely  divided,  a  bare  major- 
ity holding  out  against  the  lower  house.  The  latter  on  the  other  hand,  had 
a  large  majority,  at  times  four-fifths,  against  the  senate  majority. 


THE    TR-\NSITIONAL    PERIOD,    1788,    1 789  15 

on  constitutional  grounds  it  could  take  no  order  on  the  senate 

election. 

No  other  action  was  taken  till  February  19,  I793.  when  the 
eight  supporters  of  the  house  measures  and  only  seven  of  their 
ten  opponents  were  present  in  the  senate  at  the  same  time.     A 
resolution  was  then  passed  providing  for  the  election  of  a  United 
States  senator  by  joint  ballot,  nominations  to  be  previously  made. 
This  resolution  was  immediately  sent  to  the  house  where  it  was 
adopted  without  delay.    Thus  through  strategy  the  joint  session 
faction  finally  attained  its  end.     Previous  to  the  date  of  election, 
February  28,  sixteen  persons  were  placed  in  nomination,  among 
them  being  James  Ross,  Colonel  Henry  Miller,  Albert  Gallatin 
and  former  Senator  William  Maclay.     On  the  day  of  election 
the  house  supporters  united  on  Albert  Gallatin  and  the  senate 
on  Henry  Miller.     Of  eighty-two  votes  cast,  Gallatin  received 
forty-five  and  was  declared  elected. 

When,  because  he  had  not  been  seven  years  a  citizen,  the 
election  of  Gallatin  was  declared  void  by  the  United  States 
Senate,^  the  Pennsylvania  lower  house  passed  a  resolution  to  elect 
a  senator  by  joint  vote.  The  senate  showed  signs  of  balking 
again,  but  when  it  came  to  a  decision,  negatived  a  resolution  for  a 
concurrent  vote  and  reluctantly  adopted  the  house  resolve.  Four- 
teen persons  were  placed  in  nomination,  but  only  three  were 
voted  for  at  the  election.  James  Ross,  the  successful  candidate, 
received  fortv-five  votes,  Robert  Coleman,  thirty-five,  and  Samuel 
Sitgreaves  one.  Thus,  finally,  on  April  i,  1794,  an  acceptable 
senator  was  chosen  for  the  term  commencing  March  4,  179I; 

Like  many  of  the  other  apparently  constitutional  questions 
of  the  time,  this  contest  was  at  heart  a  political  one.  The  ma- 
joritv  in  the  senate  was  Federal,  in  the  house.  Republican.  If 
the  election  were  by  concurrent  vote,  the  senate  could  hold  out 
against,  and  possibly  in  time  secure  a  victory  over  the  house,  but 

'February  28,  1794.     See  Annals  of  Congress,  i793-95>   47-62- 


l6  UNIVERSITY  OF  MISSOURI  STUDIES 

if  the  election  were  by  joint  vote,  the  large  house  majority  would 
swamp  the  senate  on  the  first  ballot.  This  was  the  real  signifi- 
cance of  the  deadlock  lasting  until  1793.  In  1794  the  two  houses 
were  of  the  same  political  faith,  and  it  made  little  difference  which 
mode  of  election  was  used.  This  explains  the  yielding  of  the 
senate  to  the  house  in  the  latter  year. 

The  Connecticut  and  Delaware  legislatures,  following  Penn- 
sylvania in  point  of  time,  held  their  senatorial  elections  in  joint 
session,  apparently  without  question  or  unusual  incident.  This 
was  the  customary  method  for  the  election  of  several  of  their  state 
officers.  The  successful  candidates  in  Connecticut  were  William 
S.  Johnson  and  Oliver  Ellsworth.  In  Delaware  the  council  and 
assembly  met  together  on  October  25,  at  twelve  o'clock,  and  placed 
George  Reed,  Gunning  Bedford  and  Richard  Basset  in  nomina- 
tion. At  three  o'clock  of  the  same  day,  another  joint  session  was 
held  and  Reed  and  Basset  were  elected.^^^ 

In  Virginia  the  choice  of  senators  was  interesting,  not  be- 
cause of  any  unusual  method  employed  in  the  election,  nor  of 
any  contest  between  the  two  houses,  but  because  the  anti-consti- 
tutional party  in  that  state  was  making  a  last  desperate  attempt 
to  thwart  the  operation  of  the  new  Constitution  by  forcing  Con- 
gress to  call  a  second  general  convention.  It  was  necessary  to  the 
success  of  this  movement  that  friends  of  the  Constitution  must 
not  be  sent  to  Congress,  hence  the  struggle  was  carried  into  the 
senatorial  election. 

On  the  first  of  November,  1788,  Patrick  Henry  moved  that 
on  November  8  the  two  houses  proceed  by  joint  ballot  to  the 
choice  of  two  senators  to  represent  Virginia  in  the  United  States 
Senate. ^^  Both  houses  agreed  and  on  the  sixth  of  November  can- 
didates were  nominated.  The  only  person  brought  forward  by 
the  Federalists  was  James  Madison.    Three  weeks  earlier,  in  writ- 

'"  Minutes  of  the  Council  of  Delaware, 
n  Rives'  Madison,  II.  648. 


THE    TR.\NSITIONAL    PERIOD,    I788,    I789  I7 

ing  to  Governor  Randolph  on  the  subject,  Madison  had  said,  "I 
mean  not  to  decline  an  agency  in  launching  the  new  government 
if  such  should  be  assigned  me  in  one  of  the  Houses,  and  I  prefer 
the  House  of  Representatives,  chiefly  because  if  I  can  render  any 
service  there,  it  can  only  be  to  the  public,  and  not  even  in  imputa- 
tion, to  myself.  At  the  same  time,  my  preference,  I  own,  is  some- 
what founded  on  the  supposition  that  the  arrangements  for  the 
popular  elections  may  secure  me  against  any  competition  which 
would  require  on  my  part  any  step  that  would  speak  a  solicitude 
which  1  do  not  feel,  or  have  the  appearance  of  a  spirit  of  elec- 
tioneering which  I  despise."^2  g^t  when  his  friends  expressed 
a  strong  preference  for  him  over  any  other  Federal  candidate  for 
the  senatorship,  he  waived  all  objections,  though  at  the  same  time, 
from  the  political  complexion  of  the  assembly,  he  did  not  expect 
to  be  elected. 

For  the  Antifederal  party,  two  candidates,  Richard  Henry 
Lee  and  William  Grayson,  were  nominated,  Henry  taking  the 
unusual  liberty  of  naming  both.  A  letter  from  Governor  Ran- 
dolph to  Madison,  describing  the  proceedings  on  the  day  of 
nomination,  says,  "Mr.  Henry,  after  expatiating  largely  in  favor 
of  Mr.  Lee  and  Mr.  Grayson,  concluded  that  yourself,  whose 
talents  and  integrity  he  admitted,  were  unreasonable  on  this  oc- 
casion, in  which  your  Federal  politics  were  so  adverse  to  the 
opinions  of  many  members.  Your  friends  Page,  Corbin,  Carring- 
ton  and  White  were  zealous,  but  the  last  gentleman,  having  in 
the  connection  of  his  idea  something  about  instructions,  ac- 
knowledged that  it  was  doubtful  whether  you  would  obey  instruc- 
tions which  should  direct  you  to  vote  against  direct  taxation. 
'Thus  gentlemen,'  rejoined  Mr.  Henry,  'the  secret  is  out;  it  is 
doubted  whether  Mr.  Madison  will  obey  his  instructions.'  "^^ 

'2  Madison,  to  Edmund  Randolph,  October  17,  1778.  Madison's  Writ- 
ings, V.  276.     See  also  V.  296. 

"Conway's  Randolph,  pp.  120-121. 
2 


l8  UNIVERSITY  OF  MISSOURI  STUDIES 

Henry  urged  in  particular  that  Madison  was  against  amendments, 
a  telling  argument  in  an  assembly  committed,  as  it  already  was, 
to  the  principle  of  amendments  at  any  cost.  This  public 
philippic  against  Madison  had  its  desired  effect.  At  the  election 
on  the  eighth,  Lee  received  ninety-eight  votes,  Grayson  eighty- 
six,  Madison  seventy-seven  and  sixty-seven  votes  were  given  to 
persons  not  nominated. ^^  Thus  Virginia  elected  two  declared 
Antifederalists  to  the  Senate. 

The  first  choice  of  senators  in  New  Hampshire  was  by  con- 
current vote.  This  was  the  more  strange  because  the  two  houses 
were  accustomed  to  meet  in  joint  session  for  debate  on  important 
matters — as  they  did,  for  instance,  to  consider  the  best  method 
of  carrying  into  effect  the  resolves  of  Congress  relative  to  the 
new  Constitution.^^  But  the  journals  of  neither  house  nor  of 
any  other  extant  records  contain  an  account  of  any  question 
arising  as  to  whether  or  not  this  was  the  proper  mode  of  electing 
senators.  On  November  ii,  the  lower  house,  by  a  vote  of  sixty 
to  three  proposed  John  Langdon  as  one  of  the  senators. ^^^  The 
day  following,  the  senate  concurred  in  the  choice  of  Langdon, 
and  chose  Josiah  Bartlett  as  his  colleague.  At  the  same  time  the 
house  selected  Nathaniel  Peabody,  and  then  waited  to  see  what 
the  senate  would  do  with  this  choice  before  acting  on  that  body's 
recommendation.  The  senate,  however,  by  a  vote  of  two  to 
eight  non-concurred  in  the  election  of  Peabody,  and  the  house 
then  concurred  in  the  choice  of  Bartlett.  Bartlett  declined  to 
serve,  and  on  January  i  the  house  selected  Paine  Wingate  in  his 
place,  a  decision  to  which  the  senate  agreed. 

The  Massachusetts  general  court,  in  contrast  to  the   New 

'^Ibid.  Each  person  of  the  164  who  voted  named  two  candidates. 
Randolph  says  that  at  least  fifty  of  the  sixty-seven  votes  given  to  men  not 
nominated,  came  from  Madison's  friends,  who  thus  threw  away  their  second 
vote  rather  than  assist  Lee  or  Grayson. 

'5  State  Papers  of  New  Hampshire,  XXI.  349. 

'«Ibid..  XXI.  356,  357. 


THE    TR.\NSITIONAL    PERIOD,    1 788,    I789  I9 

Hampshire  assembly,  had  considerable  trouble  in  deciding  upon 
an  election  method.  The  joint  committee  on  the  new  government 
made  a  detailed  report  November  4,  in  which  it  was  recommended 
that  in  the  choice  of  senators,  each  branch  of  the  legislature 
have  a  negative  upon  the  other.^'^  The  house  did  not  readily 
accede  to  this,  and  the  committee  was  called  upon  to  defend  its 
action.  To  quote  the  Massachusetts  Centinel,  "Mr.  Dawes  ex- 
plained the  reasons  which  induced  a  majority  of  the  reporting 
committee  to  agree  to  it — he  said  the  Federal  Constitution  had 
directed  that  the  choice  should  be  by  the  Legislatures  of  the  sev- 
eral States.  In  order  to  ascertain  what  was  meant  by  the  term 
Legislature,  a  recurrence  was  had  to  the  constitution  of  this 
State,  and  it  had  there  been  found  that  the  Legislature  consisted 
of  the  two  branches  of  the  General  Court,  acting  on  each  other  by 
a  negative.  The  Committee  therefore  could  do  no  other  than 
report  as  they  had."^®  As  the  house  considered  that  mode  of 
election  prejudicial  to  its  privileges,  the  acceptance  of  the  report 
was  negatived  by  a  great  majority.  A  deadlock,  lasting  for  two 
weeks,  ensued,  but  finally  on  November  20,  a  compromise  between 
the  two  houses  was  effected.  It  was  agreed  that  the  choice  of 
presidential  electors  should  be  by  joint  ballot,  and  the  choice  of 
senators  by  concurrent  vote.  On  the  following  day  the  house 
proceeded  with  the  election  of  two  persons,  Caleb  Strong  and 
Charles  Jarvis.  The  senate  at  once  concurred  in  the  election  of 
Strong,  but  non-concurred  in  that  of  Jarvis,  proposing  John 
Lowell  instead.  The  house  would  not  agree  to  Lowell's  election 
and  chose  Jarvis  a  second  time.  The  senate,  in  turn,  sent  down 
its  second  non-concurrence,  this  time  proposing  the  name  of 
Azor  Orne.  The  house  refused  to  accept  Orne  and  persisted 
in  naming  Jarvis,  but  for  the  third  time  the  senate  non-concurred 
and  brought  forward  Tristram  Dalton.     Both  houses  seemed  de- 

"■  Massachusetts  Centinel,  November  5,  1788. 
i»IbuJ.,     November  8,  17S8. 


20  UXIVERSITY  OF  MISSOURI  STUDIES 

termined  and  an  indefinite  contest  was  foreshadowed,  but  just 
at  this  juncture  Jarvis  withdrew.  The  house  then  chose  Nathan 
Dane  but  the  senate  insisted  upon  Dalton,  and  on  November 
24,  the  house  concurred  in  the  latter's  election. ^^ 

In  New  Jersey  the  "joint  meeting"  had  a  regular  organiza- 
tion. Annually,  at  the  beginning  of  each  new  legislature,  the 
two  houses  cam,e  together  and  elected  officers  of  the  joint  meet- 
ing to  serve  one  year.  Many  important  questions  and  all  elections 
of  state  officers  came  before  this  body.  This  explains  the  tenth 
section  of  the  act  for  carrying  the  new  Constitution  into  effect 
in  New  Jersey,  passed  November  21,  1788.20  By  this  section 
it  was  provided  that  two  citizens  of  the  state,  qualified  as  the  con- 
stitution directed,  should  be  chosen  by  the  state  legislature 
assembled  in  joint  meeting.  The  governor  of  the  state  was 
authorized  to  commission  the  persons  so  chosen,  under  the  great 
seal  of  the  state.  On  the  day  following  the  passage  of  the  bill, 
the  council  proposed  to  the  house  a  joint  meeting  on  the  follow- 
ing Tuesday,  November  25,  at  the  college  library  room,2i  for 
the  purpose  of  electing  senators  and  other  officers.22  The  house 
promptly  acquiesced,  and  at  the  prescribed  time  and  place,  twelve 
councillors  and  thirty-eight  assemblymen  were  present.  Each  had 
the  privilege  of  voting  for  two  persons.  Four  candidates  were 
placed  in  nomination:  William  Paterson,  Abraham  Clark,  Jona- 
than Elmer  and  Elias  Boudinot.  Of  the  one  hundred  votes  cast, 
Paterson  received  forty-five,  Elmer  twenty-nine,  Clark  nineteen 
and  Boudinot  seven.  Paterson  and  Elmer  were  declared  elected.^s 
It  is  worthy  of  remark  that  in  this  case,  judging  by  the  returns, 
a  concurrent  vote  would  not  have  changed  the  result.  Of  the 
twenty-four  votes  cast  by    the    councillors,    Paterson    received 

19  Massachusetts  Centinel,  November  22,  1788,  et  seq. 

20  New  Jersey  Session  Laws. 

21  The  assembly  was  meeting  at  Princeton. 

22  Journal  of  the  Proceedings  of  the  Legislative-Council. 

23 New  Jersey  Journal  and  Political  Intelligencer,  December  3.  1788. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  21 

twelve,  Elmer  had  seven,  Clark  three,  and  Boudinot  two;  while 
of  the  seventy-six  votes  by  the  assemblymen,  Paterson  received 
thirty-three,  Elmer  twenty-two,  Clark  sixteen,  and  Boudinot  five. 
All  four  candidates  were  professed  Federalists,  though  it  was 
thought  Clark  favored  amendments. 

The  Maryland  legislature  passed  no  law  on  the  subject  of 
the  election,  but  it  was  agreed  by  a  concurrent  resolution  that 
the  election  should  be  by  joint  ballot,  that  no  person  should  be 
chosen  except  by  a  majority  of  the  attending  members  of  both 
houses,  that  one  senator  should  be  a  resident  of  the  western  shore 
and  one  of  the  eastern  shore,  and  that  the  election  should  take 
place  December  g.^^  On  that  day  thirteen  of  the  fifteen  mem- 
bers of  the  senate,  and  seventy  of  the  seventy-six  members  of 
the  house  of  delegates  attended  the  joint  session.  John  Henry 
and  George  Gale  were  put  into  nomination  for  the  eastern  shore, 
and  Charles  Carroll  and  Uriah  Forrest  for  the  w^estern  shore. 
On  the  first  ballot  Henry,  Gale  and  Forrest  each  received  forty- 
one  votes,  and  Carroll  forty.  Since  eighty-three  members 
were  present  no  candidate  had  received  the  necessary  majority 
of  forty-two,  and  a  second  ballot  was  taken.  It  resulted  as  fol- 
lows: Henry  forty-two.  Gale  forty,  Forrest  forty-one  and  Car- 
roll forty-one.  Henry  was  therefore  declared  elected  as  the 
senator  from  the  eastern  shore,  and  adjournment  was  taken  un- 
til the  following  day.  The  first  ballot  cast  when  the  joint  session 
reassembled  resulted  in  the  election  of  Carroll,  forty-two  votes 
being  given  to  him  and  thirty-nine  to  Forrest.^^  Had  the  Mary- 
land election  been  by  concurrent  vote,  either  a  deadlock  would 
have  resulted  or  it  would  have  been  necessary  to  eflfect  a  com- 
promise between  the  two  houses,  for,  on  the  first  ballot,  forty 
of  the  seventy  members  present  from  the  lower  house  voted  for 
Henry  and  Forrest,  while  twelve  of  the  thirteen  senators  present 

2<  Session  Laws  of  Maryland,  1788. 

25  Independent  Gazetteer,  December  iS,  178S. 


22  UNIVERSITY  OF  MISSOURI  STUDIES 

favored  Carroll  and  Gale.^^  Possibly,  even  as  it  was,  the  result 
was  a  compromise,  for  Henry,  supported  by  the  house  majority, 
was  chosen  over  Gale,  while  Carroll,  supported  by  the  senate 
majority,  was  chosen  over  Forrest. 

The  South  Carolina  and  Georgia  legislatures  chose  their 
senators  early  in  the  year  1789.  Little  more  than  the  names  of 
the  successful  candidates,  and  the  fact  that  they  favored  the  Con- 
stitution is  known.  The  Georgia  legislature,  similar  to  the 
Pennsylvania  assembly,  was  composed  of  but  one  house  at  that 
time,  and  being  free  from  inter-house  struggles,  had  no  difficulty 
in  making  James  Gunn  and  William  Few  its  choice.  The  elec- 
tion in  South  Carolina  was  probably  in  joint  session,  the  mode  fol- 
lowed in  the  choice  of  presidential  electors.  Pierce  Butler  and 
Ralph  Izard  were  returned. 

The  absence  of  any  constitutional  provision  or  congressional 
law  specifically  describing  the  manner  of  the  choice  of  senators 
was  felt  most  keenly  during  the  first  election  in  New  York,  where 
a  deadlock  in  the  legislature  deprived  that  state  of  representation 
in  the  United  States  Senate  for  the  greater  part  of  the  first  ses- 
sion of  Congress.  The  upper  house  of  the  assembly  contained 
a  very  small  Federal  majority  while  the  lower  house  was  Anti- 
federal  in  the  proportion  of  about  seven  to  five.  This  gives  the 
key  to  the  situation  at  once,  though  upon  its  face  the  contest  was 
altogether  a  constitutional  one. 

The  assembly  met  December  10,  1788.  Ten  days  later  the 
senate  passed  a  bill  providing  for  the  election  of  Philip  Schuyler 

26 Nothing  has  been  found  to  indicate  that  this  contest  was  anything 
more  than  the  result  of  personal  rivalry.  Carroll  and  Gale  were  unques- 
tionably P'ederalists,  but  there  is  no  apparent  evidence  that  Henry  and 
Forrest  were  Antifederalists.  The  house  of  delegates  was  certainly 
Federalist,  as  is  proved  by  the  law  it  passed  for  the  election  of  repre- 
sentatives, and  hence  would  not  have  supported  Antifederalists.  Possibly 
Henry  and  Forrest  belonged  to  the  middle  party  favorable  to  constitu- 
tional amendments  by  Congress. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  23 

and  Robert  Yates,  but  when  it  came  before  the  house  it  was 
rejected  without  debate.  The  house,  meanwhile,  had  framed  a 
general  election  bill  for  senators,  representatives  and  presidential 
electors,  which  it  passed  December  22.  In  the  election  of  sena- 
tors, this  bill  provided  that  the  senate  and  assembly  should  each 
openly  nominate  as  many  persons  as  there  were  senators  to  be 
chosen,  after  which  nomination  both  houses  should  come  to- 
gether and  compare  the  lists.  Those  persons  named  in  both  were 
to  be  declared  elected,  and  in  case  only  one  man  was  so  chosen, 
from  the  remaining  persons  whose  names  were  on  one  list  only 
the  other  senator  was  to  be  chosen  by  joint  ballot.^" 

The  senate  passed  the  bill,  but  with  amendments  wholly 
changing  its  character.  For  electing  senators,  the  upper  house 
substituted  the  following:  "The  senate  and  assembly  of  this 
state  shall,  if  two  senators  are  to  'be  appointed,  openly  nominate 
two  persons,  and  shall  respectively  give  notice  each  to  the  other 
of  such  nomination;  that  if  both  houses  agree  in  the  nomination 
of  the  same  person  or  persons,  the  person  or  persons  so  nominated 
and  agreed  to  shall  be  the  Senator  or  Senators  to  represent  this 
state  in  the  Senate  of  the  Congress  of  the  United  States;  that  if 
the  nomination  of  either  house  does  not  agree  in  any  of  the  per- 
sons nominated  by  the  other  the  Senate  shall  on  the  same  day 
openly  choose  one  of  the  persons  nominated  by  the  assembly,  and 
the  assembly  shall  on  the  same  day  openly  choose  one  of  the  per- 
sons nominated  by  the  Senate,  and  the  two  persons  so  chosen 
shall  be  the  Senators  to  represent  this  state  as  aforesaid ;  that  in 
every  case  where  two  Senators  are  to  be  chosen,  and  both  houses 
agree  only  as  to  one  in  such  nomination  as  aforesaid,  and  in  every 
case  where  only  one  Senator  is  to  be  chosen,  either  of  the  two 
houses  of  the  legislature  may  propose  to  the  other  a  resolution 
for  concurrence,  naming  therein  a  person  to  fill  the  office  of  Sena- 
tor, and  if  the  house  receiving  such  resolution  shall  concur  there- 

2^  Pennsylvania  Packet,  January  iS,  1789. 


24  UNIVERSITY  OF  MISSOURI  STUDIES 

in,  the  person  so  named  in  such  resolution  shall  be  the  Senator, 
but  if  such  resolution  shall  not  be  concurred  in,  either  house  may 
on  that  or  any  future  day,  proceed  to  offer  to  the  other  a  resolu- 
tion for  concurrence  from  time  to  time  until  they  shall  agree  upon 
a  Senator."28 

The  amended  bill  received  an  adverse  vote  in  the  house,  but 
according  to  Article  XV,  of  the  state  constitution,  before  it  could 
be  finally  rejected,  a  joint  session  or  conference  had  to  be  arranged 
and  "managers"  appointed  by  each  house  to  present  its  point  of 
view.  This  conference  was  arranged  for  January  5.  Duane, 
L'Hommedieu  and  Schuyler  were  appointed  to  speak  for  the  sen- 
ate; Jones,  Adgate  and  G.  Livingston  were  to  perform  a  like  office 
for  the  house.  A  great  debate,  lasting  almost  the  entire  day, 
ensued.  It  was  urged  in  behalf  of  the  original  bill  that  it  followed 
the  plan  directed  by  the  state  constitution  and  was  therefore  the 
only  constitutional  method.  To  this  it  was  replied  that  the  new 
Federal  Constitution  had  made  certain  parts  of  the  state  consti- 
tution null  and  void.  The  latter  had  indeed  provided  for  the  elec- 
tion of  members  of  the  Continental  Congress  by  joint  vote, 
but  under  the  new  regime  the  only  authority  for  the  appointment 
of  senators  was  derived  from  the  Federal  Constitution.  The 
house  managers  demurred,  saying  that  the  new  Constitution  did 
not  expressly  do  away  with  or  contradict  the  election  provision  of 
the  state  constitution;  the  latter  was  still  in  force  and  should  be 
employed.  In  that  case,  answered  the  senate  managers,  since  it 
was  clear  that  United  States  representatives  were  as  much  "mem- 
bers of  Congress"  as  were  senators,  they  ought  also  to  be  elected 
by  joint  ballot  of  the  two  houses, — a  deduction  plainly  following 
the  house  arguments,  though  as  plainly  unconstitutional.  But.  it 
was  rejoined,  the  senate  amendment  was  not  conformable  to  either 
of  the  constitutions,  since  the  language  of  both  was  that  of  choos- 
ing or  electing,  whereas  the  idea  in  the  amendment  barely  airiount- 

^ Pennsylvania  Packet,  January  18,  1789. 


THE    TIL\NSITIONAL    PERIOD,    1 788,    I789  2$ 

ed  to  an  appointment.  A  joint  vote  is  an  election  by  the  legisla- 
ture, they  argued  further,  while  a  concurrent  vote  is  simply  an 
appointment  by  an  act  of  the  legislature.  An  appointment  by  an 
act  was  precisely  the  proper  method,  replied  the  senate  speakers. 
The  new  Constitution  prescribed,  "the  times,  places  and  manner 
of  holding  elections  for  senators  and  representatives  shall  be 
prescribed  in  each  state  by  the  legislature  thereof."  That  is,  the 
legislature,  in  New  York  the  senate  and  house,  must  act  as 
it  usually  acts,  since  no  other  mode  is  dictated, — and  the  two 
houses  in  New  York  "act  by  and  have  a  negative  upon  each 
other."  The  house  ignored  this  and  advanced  a  new  argument. 
The  assembly  was  nearer  the  people,  and  in  a  case  of  this  kind 
ought  to  have  more  power  in  the  choice;  this  was  the  principle 
upon  which  the  state  constitution  had  been  formed.  The  senate 
managers  denied  this  and  affirmed  that  the  state  constitution 
had  established  an  equality  between  the  two  branches  of  the  leg- 
islature, which  the  house  plan  would  destroy.  As  a  last  resort  the 
house  managers  urged  the  acceptance  of  their  plan  on  the  grounds 
of  expediency:  the  senate  plan  was  not  conclusive,  and  if  the 
two  houses  could  not  agree,  no  appointment  would  follow.  In 
answer  it  was  stated  that  the  senate  amendment  copied  the  plan 
used  satisfactorily  in  the  passage  of  laws.^^ 

At  the  conclusion  of  the  conference  the  assembly  rejected 
the  amendment  by  a  vote  of  thirty-five  to  twenty-four :  the  senate 
refused  to  recede  by  a  vote  of  eleven  to  eight,  and  the  bill  was 
lost.  About  two  weeks  later  the  house  passed  another  bill  pro- 
viding for  the  choice  of  senators,  but  it  contained  provisions 
exactly  similar  to  those  of  the  bill  which  had  failed.  The  senate 
passed  the  bill  with  the  same  amendment  as  before.  A  conference 
was  again  held  but  neither  side  would  compromise,  and  the  bill 
was  lost.  Spasmodic  efforts  to  come  to  an  understanding  were 
continued,  but  all  were  fruitless,  and  the  legislature  finally  ad- 
journed March  3,  with  no  senators  appointed. 

2«  Pennsylvania  Packet,  January-Februarv,  1789. 


26  UNIVERSITY  OF  MISSOURI  STUDIES 

The  contest  was  now  transferred  from  the  legislature  to 
the  voters  of  the  state.  The  election  of  state  officers  was  to  be 
held  April  28,  and  both  parties  made  strong  efforts  to  win.^o 
The  gubernatorial  contest  attracted  the  greatest  attention,  but 
the  struggle  to  control  the  legislature  was  a  close  second  in  in- 
terest. The  final  returns  showed  that  the  honors  were  divided. 
The  Antifederalists  were  successful  in  the  choice  of  a  governor, 
CHnton  winning  by  about  four  hundred  votes,  but  the  Federalists 
had  a  majority  in  the  legislature.  On  June  4  Governor  Clinton 
issued  a  proclamation  convening  the  legislature  in  special  session 
at  Albany  July  6.^^  Although  no  definite  reason  was  given,  it  was 
surmised  by  the  press  of  the  country  that  the  special  business  was 
the  election  of  senators.32 

On  July  8,  two  days  after  the  legislature  had  met,  a  bill 
directing  the  manner  of  appointment  of  United  States  senators 
was  presented  to  the  house.  In  brief,  it  provided  for  an  election 
by  concurrent  vote,  thus  justifying  the  position  which  the  senate 
had  held  at  the  previous  session.  Each  house  was  to  nominate 
the  number  of  persons  to  be  elected.  If  the  nominations  agreed, 
those  nominated  were  to  be  declared  elected.  Otherwise,  if  two 
persons  were  to  be  chosen,  the  house  was  to  choose  one  from  the 
two  senate  nominations  and  the  senate  one  from  the  house  list. 
If  only  one  senator  was  needed,  or  if  two  were  to  be  chosen  and 
only  one  had  been  agreed  upon  in  the  first  nominations,  the  elec- 
tion was  to  be  by  concurrent  vote.^^ 

This  bill  passed  the  house  July  10,  and  the  senate  July  13. 
Just  at  this  point  the  Council  of  Revision  came  forward  in  sup- 
port of  the  Antifederalist  position.  This  Council  was  composed 
of  the  governor,  chancellor  and  judges  of  the  supreme  court,  and 

3°  PennsyU-ania  Packet,   May  8,   1789.     The    slate    was  '•convulsed   b_v 
parties." 

3' Independent  Gazetteer,  June  10,  1789. 

32  Independent  Gazetteer,  June  30,  1789. 

33  Ibid.,  July  22,  1789. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  27 

had  authority  to  return  to  the  legislature,  together  with  their 
written  objections,  all  bills  which  they  considered  improper  to 
become  laws.  Then,  unless  passed  by  a  two-thirds  vote  of  both 
houses  in  separate  session,  such  bills  failed.^^  On  July  15,  the 
Council  of  Revision  returned  the  bill  prescribing  the  manner  of 
electing  senators,  with  the  following  objections: 

"I.  Because  the  Constitution  of  the  United  States  directs 
that  the  Senators  be  chosen  from  each  State  by  the  Legislature 
thereof.  If  by  the  Legislature  is  intended  the  members  of  the  two 
houses  not  acting  in  their  legislative  capacity,  no  law  is  necessary 
to  prescribe  the  mode  of  election;  concurrent  resolutions  extend- 
ing in  this  case  as  well  to  the  mode  of  election  as  to  the  choice  of 
persons,  and  the  bill,  as  far  as  it  goes,  operates  as  a  restriction 
upon  the  constitutional  rights  of  the  two  houses.  If  the  Legis- 
lature are  only  known  in  their  legislative  capacity,  the  Senators 
can  constitutionally  be  appointed  by  law  only,  (that  is,  each  house 
having  a  negative  upon  the  other)  and  no  considerations  arising 
from  inconvenience  will  justify  a  deviation  from  the  Constitution 
of  the  United  States. 

"2.  Because  this  bill,  when  two  Senators  are  to  be  chosen, 
enacts  that  in  case  of  the  disagreement  of  the  two  houses  in  the 
nominations,  each  house  shall,  out  of  the  nominations  of  the 
other,  choose  one,  and  that  such  person  shall  be  the  Senator  to 
represent  this  State ;  and  thus,  by  compelling  each  house  to  choose 
one  of  two  persons,  neither  of  whom  may  meet  with  their  appro- 
bation, establishes  a  choice  of  Senators  by  the  separate  act  of  each 
branch  of  the  Legislature,  in  direct  opposition  to  the  Constitution 
of  the  United  States,  which  in  the  third  section  of  the  first  article, 
declares  that  they  shall  be  chosen  by  the  Legislature. "^^ 

The  house  refused  to  pass  the  bill  in  the  face  of  these  ob- 

"New  York  Constitution  of  1777,  Article  III. 

'^  Street's    Council    of  Revision    of    the  State  of  New   York,    p.  290. 
Albany,  1855. 


28  UNIVERSITY  OF  MISSOURI  STUDIES 

jections,  and  immediately  afterward  adopted  a  resolution  provid- 
ing for  the  choice  of  senators  by  concurrent  vote.  This  mode  being 
acceptable  to  the  senate,  the  house  proceeded  to  nominate  Philip 
Schuyler  and  James  Duane.  The  senate  by  a  vote  of  thirteen  to 
six  concurred  in  the  choice  of  the  former  but  rejected  the  latter, 
proposing  instead  Ezra  L'Hommedieu.  On  the  following  day 
the  house  non-concurred  in  the  choice  of  L'Hommedieu,  and  by 
a  unanimous  vote  nominated  Rufus  King.  The  senate  immedi- 
ately concurred,  thus  finally  completing  the  election.^^ 

North  Carolina  and  Rhode  Island,  represented  in  the  United 
States  Senate  in  the  second  and  third  sessions  of  the  first  Con- 
gress, both  chose  senators  by  ballot  in  joint  session,  the  custom 
followed  in  the  selection  of  state  officers.  This  system  was  modi- 
fied in  North  Carolina  by  a  peculiar  arrangement  in  which  each 
house  in  separate  session,  at  the  close  of  the  joint  session,  con- 
curred or  non-concurred  in  the  action  of  the  joint  session.^^ 
This  arrangement,  however,  apparently  did  not  affect  the  choice 
of  senators. 

The  North  Carolina  convention  ratified  the  Federal  Consti- 
tution November  21,  1789.  Three  days  later  the  house  proposed 
to  the  senate  that  on  the  following  Thursday,  November  26,  the 
two  houses  should  proceed  to  the  choice  of  United  States  sena- 
tors, accompanying  the  proposition  with  the  names  of  twelve 
persons  as  candidates.  The  senate  agreed  to  both  the  resolution 
and  the  nominations.  On  the  first  ballot  in  joint  session,  the  leg- 
islature elected  Samuel  Johnston  by  a  large  majority .^^  but  failed 
to  concentrate  on  a  second  choice.  Another  ballot  was  accordingly 
arranged  for  December  2,  with  three  persons  in  nomination.  But 
three  successive  sessions,  on  as  many  different  days,  had  to  be 

36  Independent  Gazetteer,  July  24,  17S9. 

87  When  the  joint  session  chose  Alexander  Martin  as  governor  to 
succeed  Johnston,  the  senate  withheld  its  concurrence  because  it  had  been 
suggested  that  Martin  was  not  eligible.     State  Records,  XXI.  661. 

s«Ibid.,  XXI.  628. 


THE    TR.\NSITIONAL    PERIOD,    1 788,    1 789  29 

held  before  Benjamin  Hawkins  was  finally  chosen  on  Decem- 
ber 8.39 

The  Rhode  Island  assembly  was  convened  m  special  session 
immediately  after  the  ratification  of  the  Constitution,  and  an  act 
was  soon  passed  making  provision  for  the  election  of  two  senators 
and  one  representative.  The  former  were  to  be  chosen  "agree- 
ably to  the  usage  in  the  choice  of  state  officers  by  this  General 
Assembly,  joined  in  a  grand  committee,  and  not  in  separate 
houses,  and  by  ballot,  and  not  otherwise."^«  The  successful  can- 
didates were  Joseph  Stanton,  first,  and  Theodore  Foster,  second.^^ 
In  order  to  enable  them  to  take  their  seats  in  Congress,  it  was 
voted  to  loan  to  each  one  hundred  fifty  dollars,  to  be  repaid  with 
interest  upon  their  return.^^  Both  took  their  seats  in  Congress 
June  25,  1790.  This  made  the  representation  of  the  thirteen  states 
in  the  upper  house  of  that  body  finally  complete. 

A  summary  of  the  results  of  this  first  election  of  United 
States  senators  reveals  the  fact  that  despite  the  wide-spread  dif- 

39  Hawkins  took  his  seat  in  Congress  on  January  13,  and  Johnston  on 
January  29,  1790. 

<°  Rhode  Island  Colonial  Records,  X.  3S5. 

^1  Rhode  Island  Colonial  Records,  X.  387-  Stanton  was  an  Anti- 
federalist  and  had  voted  against  the  adoption  of  the  Constitution.  W.  R. 
Staples,  Rhode  Island  in  the  Continental  Congress,  p.  673- 

Foster  was  a  Federalist  from  Providence  and  had  worked  hard  for  the 
adoption  of  the  Constitution.  Collections  of  the  Rhode  Island  Historical 
Society,  VII.  121-122. 

No  information  as  to  who  were  the  opposing  candidates,  nor  as  to  the 
number  of  votes  received,  is  extant.  It  would  seem  probable  that  at  the 
election  each  member  of  the  assembly  voted  for  one  person,  the  two  re- 
ceiving the  highest  number  being  elected.  In  that  case  the  assembly, 
^■hich  had  an  Antifederalist  majority,  would  naturally  give  the  highest 
number  of  votes  to  an  Antifederalist,  who  would  then  be  -first  senator, 
while  the  minority  would  unite  to  give  the  second  highest  number  ot  votes 
to  a  candidate  of  its  party.  This  man  would  then  be  "second  senator.' 
«  Rhode  Island  Colonial  Records,  X.  386. 


30  UNIVERSITY  OF  MISSOURI  STUDIES 

ference  of  opinion  as  to  the  proper  procedure  in  such  elections, 
a  large  majority  of  the  legislatures  decided  in  favor  of  the  joint 
session  method.  In  two  states,  Pennsylvania  and  Georgia,  the 
assemblies  at  that  time  were  composed  of  a  single  chamber,  and 
hence  the  election  was  a  ver\'  simple  matter.  Of  the  remaining 
eleven  states,  only  three,  New  Hampshire,  Massachusetts  and 
New  York,  chose  their  senators  by  concurrent  action  of  the  two 
houses. 


CHAPTEE  ni 

THE  FIRST  ELECTION  OF  UNITED  STATES  REPRESENTATIVES 

During  the  same  few  months  that  the  states  were  decidh^ 
for  the  first  time,  just  how  the  appointment  of  senators  should  be 
made,  they  were  also  making  their  first  provisions  for  the  election 
of  United  States  representatives.    None  of  the  states  had  taken 
any  aetion  previous  to  the  autumn  of  1788,  but  the  subject  had 
been  discussed  in  the  newspapers  of  the  country  during  the  sum- 
mer and  the  people  had  become  familiar  with  the  respective  ad- 
vanmges  and  disadvantages  of  two  plans,  a  district  system  and  a 
general  ticket  system.    One  writer  had  suggested  a  combmat.on 
of  the  two  modes,  namely,  that  the  respective  states  divide  them- 
selves into  as  many  districts  as  there  were  members  to  be  chosen 
direct  the  voters  to  fix  upon  a  member  from  each  district,  and 
then  let  the  entire  state  vote  for  the  whole  number  of  mem- 
bers    By  this  mode,  he  declared,  a  knowledge  of  the  local  in- 
terests of  every  part  of  the  state  would  be  carried  to  Congress 
but  in  such  manner  as  not  to  interfere  with  the  genera   interes 
of  the  whole  state,  the  agriculture  and  commerce  of  the  states 
would  always  be  kept  in  friendship  with  each  other,  and  none  but 
men  of  real  character  and  abilities  would  be  returned    for  such 
men  are  generally  best  known  throughout  every  part  of  a  state. 
By  the  plan  of  choosing  federal  representatives  at  large   a  friend 
of  the  general  ticket  urged,  the  pernicious  acts  of  caballing  and 
influencing  would  be  avoided,  and  the  best  chance  of  obtaining  the 
esrman'and  the  best  abilities  afforded.^     The  Constitu.iona 
provision  that  the  legislatures  of  the  respective   states   should 

1  Massachusetts  Centinel,  July  23,  17SS. 

2  Ibid.,  November  i,  178S. 

(31) 


32  UNIVERSITY  OF  MISSOURI  STUDIES 

prescribe  the  times,  places  and  manner  of  holding  the  elections  ^ 
showed  no  preference  for  either  mode,  and  in  deciding  the  ques- 
tion, the  various  state  legislatures  were  generally  guided  by  mo- 
tives of  policy,  or  by  election  custom. 

A  variety  of  election  laws  was  passed,  immediately  after  the 
passage  of  which,  the  political  parties  in  the  several  states  began 
to  take  measures  for  bringing  suitable  candidates  before  the 
public.  It  is  very  difficult,  owing  to  the  paucity  of  records  of 
any  kind,  to  follow  these  moverrtents,  but  the  political  activities 
may  be  traced  in  three  or  four  states. 

Pennsylvania  led  off  in  favor  of  the  general  ticket  system. 
The  state  as  a  whole  was  Federal,  But  there  were  strong  Anti- 
federal  sections  which,  had  the  district  system  been  adopted, 
would  have  returned  representatives  from  that  party.  So  it  was 
obviously  the  part  of  political  wisdom  for  the  assembly,  which 
was  strongly  Federal,  to  adopt  the  general  ticket  system.  Such 
an  argument  was  not  given  by  the  supporters  of  that  system  on 
the  floor  of  the  assembly,  however.  There,  when  the  report  of 
the  special  committee  showed  that  it  favored  the  general  ticket 
system,  its  opponents  urged,  on  the  grounds  of  expediency,  that 
only  by  the  district  system  could  eight  men^  have  a  particular 
knowledge  of  the  local  and  common  interest  of  their  constituents 
throughout  the  state.    To  this  it  was  replied  that  the  district  sys- 

'  Constitution,  Article  i,  section  4. 

Madison,  in  the  Constitutional  Convention,  said,  "These  were  words 
of  great  latitude.  It  was  impossible  to  foresee  all  the  abuses  that  might  be 
made  of  the  discretionary  power.  Whether  the  electors  should  vote  by 
ballot,  or  viva  voce,  should  assemble  at  this  place  or  that  place,  should  be 
divided  into  districts,  or  all  meet  at  one  place,  should  all  vote  for  all  the 
representatives,  or  all  in  a  district  vote  for  a  number  allotted  to  the  dis- 
trict— these  and  many  other  points,  would  depend  on  the  legislatures,  and 
might  materially  affect  the  appointments." 

Elliot's  Debates,  edition  of  1861,  V.  401. 

*  Pennsylvania  was  entitled  to  eight  representatives. 


/ 


THK    TRANSITIONAL    PERIOD,    1 788,    1 789  33 


tern  was  unconstitutional  since  it  placed  another  qualification,  not 
named  in  the  Constitution,  upon  the  candidate,  namely,  that  he  be 
an  inhabitant  of  that  particular  district,  or  part  of  the  state,  from 
which  it  was  proposed  to  choose  him.  If  the  state  were  divided 
into  eight  districts,  each  to  choose  one  member,  how  could  any  one 
of  them  be  called  a  representative  of  Pennsylvania,  or  how  could 
confidence  be  reposed  in  a  person  disagreeable  to  seven-eighths 
of  the  inhabitants  of  the  state, — not  an  impossible  case.  More- 
over, when  a  person  so  chosen  went  to  Congress,  a  body  which 
judged  the  qualifications  of  its  own  members,  might  it  not  be 
urged  against  him  that  he  was  not  a  representative  of  Penn- 
sylvania because  he  had  been  elected  by  only  one-eighth  part  of 
the  state,  and  for  this  reason  the  election  be  declared  irregular 
and  set  aside.^  These  arguments  overcame  the  feeble  opposition 
and  the  general  ticket  plan  was  easily  carried.^  The  act  as  passed 
provided  for  an  election  to  be  carried  on  in  accordance  with  the 
general  election  laws  of  the  state,  on  the  last  Wednesday  of  the 
following  November.  Each  person  voting  was  to  deliver  in  writ- 
ing on  a  slip  of  paper  the  names  of  eight  persons  to  serve  as 
representatives.  These  were  to  be  selected  from  the  citizens  at 
large  who  were  duly  qualified  by  the  United  States  Constitution. 
The  eight  receiving  the  highest  number  of  votes  were  to  be  de- 
clared elected." 

Two  political  conventions  were  held  in  the  autumn  of  1788.^ 

*  Lloyd's  Debates,  September  24,  17S8. 

*In  proof  that  this  was  a  political  measure,  see  a  letter  from  Benjamin 

Rush  to  Jeremy  Belknap,  October  7,   178S.     " Our  state  has  taken 

the  lead  in  making  arrangements  for  setting  the  new  Government  in 
motion.  By  obliging  the  whole  state  to  vote  in  one  ticket  it  is  expected 
the  Federalists  will  prevail  by  a  majority  of  two  to  one  in  the  choice  of 
Representatives  for  the  lower  house  of  Congress."  Collections  of  the 
Massachusetts  Historical  Society,  sixth  series,  IV.  418. 

'Pennsylvania  Session  Laws,  October  4,  1788. 

*J.  S.   Walton,  Nominating  Conventions  in  Pennsylvania,    American 
Historical  Review,  II.  262  et  seq. 

3 


34  UNIVERSITY  OF  MISSOURI  STUDIES 

The  first,  convened  at  Harrisburg  September  3,  a  month  before 
the  passage  of  the  election  law,  was  called  by  the  Anti federalists, 
primarily  to  discuss  the  revision  of  the  Federal  Constitution,  but 
secondarily  to  nominate  a  list  of  persons  for  representatives  and 
electors.  No  evidence  is  at  hand  to  prove  that  the  second  object 
of  the  meeting  was  completely  carried  out,  though  a  tentative 
list  of  names  may  have  been  agreed  upon.  Ten  weeks  elapsed 
between  the  meeting  and  the  publication  of  the  nominations,  dur- 
ing which  time  the  ticket  was  fully  and  finally  decided  by  cor- 
respondence. It  first  appeared  in  the  newspapers  of  Philadelphia, 
November  12,  in  an  address  to  the  freemen  of  Pennsylvania, 
signed  by  "A  friend  to  Liberty  and  Union."^  This  address  re- 
ferred to  the  Constitution,  with  its  lack  of  amendments,  as  con- 
taining two  great  defects.  The  first  of  these  was  the  unlimited 
power  of  Congress;  the  second,  the  w^ant  of  provisions  securing 
the  rights  of  the  individual.  The  article  went  on  to  say  that  the 
writer  had  learned,  from  his  correspondents  throughout  the  state, 
of  a  widespread  desire  to  see  the  Constitution  amended.  And  in 
the  belief  that  the  new  Congress,  if  properly  selected,  would  take 
the  initiative  in  securing  such  amendments,  it  had  been  thought 
wise  to  place  in  nomination  for  representatives  the  following 
men:  William  Findley,  Charles  Pettit,  William  In'ine,  Robert 
Whitehill,  William  Montgomery,  Blair  McClenachan,  Daniel 
Heister  and  Peter  Muhlenberg.  This  was  known  to  the  Anti- 
federalist  papers  as  the  Whig  ticket,  but  it  was  not  completely 
Antifederal.  Its  promoters  gave  as  a  reason  that  a  purely  party 
ticket  would  not  represent  all  classes  of  the  population.  The 
suspicion  arose  that  at  bottom  it  was  a  scheme  to  catch  votes,  and 
such  a  charge  was  later  made. 

The  second  convention  was  held  by  the  Federalists  November 
3,  at  Lancaster.  Its  sole  purpose  was  to  nominate  electors  and 
representatives.     This  "conference"  had  been  called  immediately 

y  Indenendent  Gazetteer,  November  12,  17S8. 


THE    TIL\NSIT10NAL    PERIOD,    1 788,    1 789  35 

after  the  passage  of  the  election  law,  and  the  party  supporters 
in  the  different  counties  had  at  once  held  meetings  and  appointed 
instructed  delegates.  In  Philadelphia  "The  Friends  to  the  Federal 
Government"  met  at  the  state  house,  October  ii,  and  appointed  a 
ward  committee  to  nominate  delegates.!^  This  committee  re- 
ported on  October  i8,  in  favor  of  James  Wilson  and  George 
Latimer,  who  were  thereupon  elected.  The  same  committee  was 
then  further  instructed  to  name  six  suitable  Philadelphians,  from 
among  w-hom  the  city's  share  of  the  congressional  delegation 
might  be  chosen.^^  These  names  were  reported  at  a  third  meet- 
ing October  25.1 - 

In  some  of  the  county  meetings  general  requisites  rather 
than  specific  persons  were  recommended.  The  party  in  Northum- 
berland, a  typical  county,  gave  the  following  instructions  to  guide 
its  delegates  in  choosing  congressional  nominees :  "let  integrity 
and  decency  of  character  be  considered  as  the  first  qualification, 
industr}^  and  application  to  business  as  the  second.  No  brilliancy 
of  talents,  or  show  of  knowledge,  should  atone  for  the  want  of  the 
above  qualities.  Thirdly,  extensive  information,  and  some  degree 
of  practice  in  agriculture,  commerce  and  manufactures,  with  a 
general  knowledge  of  the  laws  of  the  land  are  necessary.  But  as 
it  may  be  objected,  that  men  qualified  in  all  the  above  respects 
cannot  easily  be  found — and  that  different  men  adapted  to  the 
different  interests  might  be  chosen,  we  recommend  something  of 
the  following  kind :  That  two  able  merchants  who  may  attend 
to  the  interest  of  commerce,  one  person  remarkably  attached  to 
the  interests  of  manufactures,  and  an  eminent  law  character,  with 
four  substantial  yoemen,  should  form  our  representation  in  Con- 


'0  Pennsylvania  Packet,  October  13,  1788. 
"  Ibid.,  October  20,  178S. 
J2Ibid,,  October  27,  1788, 
"  Ibid.,  October  23,  1788. 


36  UXIVERSITY  OF  MISSOURI  STUDIES 

man  voters  in  the  state,  that  a  part  of  the  representation  be  able 
to  do  business  in  the  German  language. 

The  state  conference  was  held  at  the  appointed  time  and 
place.  Thirty  delegates,  representing  every  county  in  the  state 
except  Luzerne,  were  present  and  nominated  the  following  men: 
Thomas  Hartley,  Henry  Wynkoop,  George  Clymer,  Thomas 
Scott,  Thomas  Fitzsimons,  F.  A.  Muhlenberg,  Stephen  Chambers 
and  John  Allison.^-* 

The  German  voters  of  the  state  were  dissatisfied  with  both 
tickets  because  they  included  so  few  men  of  that  nationality. 
Not  having  time,  however,  to  form  a  new  ticket,  they  revised  those 
already  in  the  field  in  such  manner  that  each  German  might  vote 
for  his  own  party,  and  at  the  same  time  for  three  Germans.  For 
Chambers  and  Allison  of  the  Federal  ticket,  they  substituted 
Heister  and  Peter  Muhlenberg,  two  German  Federalists  on  the 
Antifederal  ticket;  and  the  name  of  Whitehill  on  the  Antifederal 
ticket  they  replaced  with  that  of  F.  A.  Muhlenberg,  a  German 
Federalist  on  the  Federal  ticket.^^  Thus,  there  were  four  tickets 
before  the  voters,  no  one  completely  independent  of  the  others. 

During  the  next  two  weeks  a  vigorous  campaign  was  carried 
on.  The  Federalists  urged  the  voters  to  support  the  new  Consti- 
tution, the  Antifederalists  appealed  for  the  protection  and  preser- 
vation of  the  liberties  of  the  people.  In  the  election,  held  Novem- 
ber 26,  Philadelphia  and  its  surrounding  counties  returned  large 
Federal  majorities,  and  it  seemed  that  the  full  Lancaster  ticket 
had  been  elected.  But  as  the  reports  from  the  more  distant  coun- 
ties gradually  came  in,  majorities  appeared  on  the  other  side. 
Especially  was  this  true  of  the  returns  from  Cumberland  county, 
which  out  of  a  total  of  about  1850  gave  a  majority  of  about  1300 
to  the  straight  Harrisburg  ticket.  The  final  result  showed  the 
Federal  ticket,  as  revised  by  the  Germans,  to  have  won,  F.  A. 

'*  Pennsylvania  Packet,  November  8,  1788. 

i*G.  D.  Luetscher,  Early  Political  Machinery  in  the  United  States, 
pp.  128-130. 


THE    TR.\NSITIONAL    PERIOD,    1 788,    1 789  37 

Muhlenberg  leading  with  8736  votes,  and  the  other  successful 
candidates  running  from  450  to  1300  votes  behind  him.  A  total 
vote  of  about  14615  wlas  cast.^*^ 

The  general  ticket  system  was  put  into  operation  in  Con- 
necticut also,  but  not  as  a  political  move.  In  that  state  the  twelve 
assistants  or  magistrates  were  chosen  annually  on  a  general 
ticket,  and  this  was  the  easiest  and  most  natural  method  for  the 
choice  of  representatives.  The  time  and  manner  of  proceeding 
were  arranged  as  follows :  the  freemen  were  to  meet  in  their 
respective  towms  on  November  10,  and  each  was  to  vote  for  twelve 
persons  qualified  for  representatives.  The  presiding  officers  of 
the  town  meetings  were  then  to  send  the  result  of  the  vote  to  a 
committee  consisting  of  one  person  from  each  of  the  eight  counties 
in  the  state.  This  committee  was  to  meet  November  19,  sort  and 
count  the  votes  and  publish  the  names  of  the  twelve  persons  hav- 
ing the  greatest  number.  The  towns  were  then  to  hold  a  second 
meeting  on  December  22,  when  each  freeman  was  to  vote  for 
any  five  of  these  twelve  persons.  The  results  of  this  second  meet- 
ing were  to  be  sent  to  the  general  assembly  which  was  to  meet 
January  i,  and  the  assembly  was  to  sort  and  count  the  votes,  and 
declare  the  five  persons  elected.^  "^ 

The  election  was  apparently  conducted  without  political 
excitement.^  ^  The  twelve  persons  nominated  November  10,  were 
all  men  of  ability,  active  in  state  and  continental  afifairs,  and  all 
were  evidently  Federalists.  At  the  election  on  December  22, 
the  voters  returned  the  first  five  on  the  list,  namely,  Jonathan 

'*  Independent  Gazetteer,  January  2,  7,  1789. 

''  This  does  not  appear  in  the  session  laws,  but  was  passed  as  a  resolve, 
and  is  in  the  Connecticut  Courant  of  October  20,  178S.  The  Courant 
does  not  give  any  of  the  debates  of  the  assembly. 

'^The  Connecticut  Courant  is  almost  destitute  of  any  news  of  this 
election. 


38  UNIVERSITY  OF  MISSOURI  STUDIES 

Sturges,  Benjamin  Huntington,  Jonathan  Trumbull,  Roger  Sher- 
man and  Jeremiah  Wadsworth.^^ 

New  Hampshire  also  decided  in  favor  of  the  general  ticket 
system.  By  the  provisions  of  an  act  passed  November  12,  1788,2^* 
the  election  was  appointed  for  the  third  Monday  of  the  following 
December.  Each  qualified  person  was  entitled  to  vote  for  three 
representatives,  the  full  quota  from  New  Hampshire.  In  order 
to  be  elected,  a  candidate  had  to  receive  a  majority  of  the  whole 
number  of  votes  cast.  If  there  should  be  failure  to  elect  any  or  all 
of  the  three,  the  general  court  was  directed  by  law  to  make  out  a 
list  of  persons  receiving  the  highest  number  of  votes,— the  list 
to  include  twice  as  many  as  there  were  representatives  lacking. 
These  names  were  to  be  sent  to  the  towns,  and  a  second  election 
held  on  the  first  Monday  of  the  following  February. 

The  situation  was  complicated  on  Decerriber  15,  the  third 
Monday,  by  an  excessive  number  of  candidates.  With  only  three 
to  be  elected,  votes  were  cast  for  seventy .21  As  15377  votes  were 
counted,  and  each  qualified  citizen  was  allowed  to  cast  his  ballot 
for  three  candidates,  5126  persons  must  have  voted.  One  over 
one-half,  the  necessary  majority  to  elect,  would  have  been  2564, 
but  as  no  candidate  received  such  a  vote,  a  second  election,  to 
take  place  on  the  first  Monday  in  February,  1789,  was  ordered, 
and  a  list  of  the  six  persons  standing  highest  sent  out  to  the 
voters.22    On  February  21,  1789,  the  president  and  council  of  the 

'3 The  remaining  seven  nominees  were  S.  M.  Mitchell,  John  Chester, 
James  Hillhouse,  Erastus  Wolcott,  Jesse  Root,  John  Treadwell  and 
Jedediah  Strong.     Massachusetts  Centinel,  November  29,  17SS. 

2"  Laws  of  New  Hampshire,  1789. 

2'  Pennsylvania  Packet,  January  23,  1789. 

22 The  vote  for  the  six  candidates  standing  highest  at  the  first  trial  was 
as  follows: 

Benjamin  West,  237^         Samuel  Livermore,  2245       Paine  Wingate,  2054 
Abiel  Foster,  1236  John  Sullivan,  1053  Nicholas  Oilman,  S61. 

Massachusetts  Centinel,  January  14,  17S9. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  39 

State,  having  examined  the  returns  from  the  second  trial,  an- 
nounced that  Benjamin  West,  Samuel  Livermore  and  Nicholas 
Oilman  had  been  chosen.^^  Mr.  West  at  once  resigned,  and  an 
election  to  fill  that  vacancy  was  ordered  to  take  place  June  22, 
1789.  The  New  Hampshire  delegation  was  then  completed  by 
the  choice  of  Abiel  Foster.^-*  Party  politics  had  apparently 
influenced  the  situation  little  or  not  at  all.  Of  the  six  persons 
standing  highest  in  the  election  returns  at  the  first  trial,  all  were 
Federalists.  The  seventh  on  the  list,  Joshua  Atherton,  had  been 
opposed  to  the  ratification  of  the  Constitution  on  moral  rather 
than  political  grounds,  being  inimical  to  its  provisions  concerning 
slaves  and  slavery.^s 

New  Jersey,  the  fourth  state  to  decide  in  favor  of  the  gen- 
eral ticket  plan,  also  put  into  operation  a  popular  nomination 
system.  But  this  feature  of  her  law  was  very  unlike  that  in 
Connecticut,  and  did  not  serve  so  well  to  eliminate  surplus  can- 
didates. It  was  enacted  that  any  qualified  voter  might  nominate 
four  persons,  the  quota  of  representatives  to  which  New  Jersey 
was  entitled.  These  nominations,  to  be  made  in  writing,  were 
to  be  deposited,  at  least  thirty  days  previous  to  the  election,  with 
the  clerk  of  the  court  of  common  pleas  of  the  county  in  which 
the  person  making  the  nomination  resided.  The  clerks  in  the 
respective  counties  were  then  to  transmit  the  nominations  to  the 
governor,  who  was  to  publish  them  in  the  state  newspapers  and 
send  complete  lists  to  all  the  sheriffs.  No  persons  except  those 
on  this  list  could  be  elected.  The  election  was  to  be  by  ballot, 
and  commence  on  the  second  Wednesday  in  the  following  Feb- 
ruary. The  election  judges  were  to  forward  the  returns  to  the 
governor,  who,  with  the  assistance  of  the  executive  council,  was 

23  State  Records  of  New  Hampshire,  XXI.  257. 

2*  Massachusetts  Centinel,  July  21,  1789.  The  election  of  Foster  com- 
pleted the  election  of  representatives  to  the  first  Congress  from  the  eleven 
ratifying  states. 

-^Appleton's  Cvclopaedia  of  American  Biography,  I.  114 


40  UNIVERSITY  OF  MISSOURI  STUDIES 

to  sum  up  the  whole  number  of  votes  cast,  and  commission  the 
four  persons  receiving  the  highest  number.^^ 

The  law  of  November  21,  1788,  providing  for  an  election 
in  the  following  February,  had  scarcely  passed  before  electioneer- 
ing began.  The  contest  was  not  one  between  political  parties, 
but  between  sections  of  the  state.  Before  the  legislature  ad- 
journed, a  complete  congressional  ticket  (later  known  as  the 
Western  ticket), ^^  composed  of  two  persons  from  East  Jersey 
and  two  from  West  Jersey,  was  formed  in  a  secret  caucus  of 
members  of  the  assembly.  The  origin  of  this  ticket  was  designed 
to  be  a  secret,  but  the  truth  soon  leaked  out,  whereupon  the  fol- 
lowing article  appeared.  It  was  published  in  the  New  Jersey 
Journal,  was  addressed  to  the  inhabitants  of  New  Jersey,  and 
was  signed  "A  Freeholder." 

"Within  a  few  weeks  you  will  be  called  upon  to  give  your 
suffrages  for  four  men  to  represent  you  in  the  Congress  of  the 
United  States.  This  important  privilege  ought  to  be  estimated 
by  you  at  its  true  value,  and  your  unbiased  judgment  should  be 
exercised  upon  this  occasion.  And  now,  my  fellow  citizens,  suffer 
me  to  warn  you  from  being  misguided  by  some  of  those  who,  for 
quite  another  purpose,  you  have  placed  great  trust  in. 

"I  happened  lately  to  be  at  Princeton,  where  a  number  of 
great  men  were  sitting,  and  I  discovered  that  a  junto  had  formed 
a  ticket  for  you,  which  is  to  be  secretly  ushered  into  the  several 
counties  as  if  not  coming  from  them;;  as  I  do,  from  my  heart,  most 
cordially  abhor  and  detest  all  secret  cabals  and  juntos,  I  think 
it  a  duty  incumbent  upon  me  to  apprize  you  of  their  conduct  that 
you  may  avoid  the  snare  that  is  privately  laid  for  you, 

"The  ticket  which  they  have  formed  consists  of  the  follow- 
ing names:  Elias  Boudinot  and  James  Schureman  of  East 
Jersey,    and   Lambert   Cadivalader   and    Thomas   Sinniekson   of 

^Session  Laws  of  New  Jersey,  November  21,  1788. 

27  It  is  not  easy  to  explain  why  this  became  known  as  the  West  Jersey 
ticket.     Perhaps  it  was  because  its  chief  promoters  were  West  Jersey  men. 


THE    TRANSITIONAL    PERIOD,    1 788,    I789  4I 

West  Jersey.  Some  of  these  gentlemen,  if  it  had  not  been  for 
the  very  improper  manner  in  which  they  are  attempted  to  be  pass- 
ed on  you,  might  be  well  entitled  to  your  votes;  but  under  the 
present  circumstances,  as  we  have  many  as  suitable  men,  it  will 
be  proper  to  reject  them;  and  particularly  at  this  time,  as  a  les- 
son to  our  great  men  not  to  meddle  with  matters  which  do  not 
belong  to  them. 

"I  shall,  in  a  future  paper,  present  you  with  some  strictures 
upon  the  conduct  of  two  of  those  gentlemen,  which  will,  I  trust, 
satisfy  you  that  they  ought  not  to  be  the  men  of  your  choice;  at 
present  I  shall  close,  after  using  a  privilege  which  every  citizen 
is  entitled  to,  that  is,  of  nominating  four  candidates,  who  I  intend 
to  vote  for —  Jonathan  Dayton  and  Thomas  Henderson  of  East 
Jersey,  and  John  Cox  (of  Trenton)  and  Joseph  Ellis  (of  Glou- 
cester) of  West  Jersey.  These  gentlemen  have  at  least  one  ad- 
vantage over  the  others — they  are  not  proposed  by  a  secret 
junto."28 

The  following  number  of  the  Journal  contained  a  sarcastic 
reply  which,  while  it  virtually  admitted  that  the  "Freeholder" 
was  correct  in  his  statements  as  to  the  origin  of  the  ticket,  de- 
clared in  substance  that  the  "great  men"  were  better  acquainted 
throughout  the  state  than  the  ordinary  citizen,  and  so  better  quali- 
fied to  suggest  proper  persons  to  send  to  Congress.^^     No  other 

2**  New  Jersey  Journal  and  Political  Intelligencer,  December  10,1788. 
If  the  author  of  this  public  letter  was  correct,  and  the  result  of  the  election 
indicates  that  he  must  have  been,  this  is  the  record  of  a  caucus  ante- 
dating by  about  a  month  the  Maryland  caucus,  which  Luetscher  (in  his 
Early  political  Machinery  of  the  United  States,  pp.  107-10S),  calls  the  first. 
It  also  appears  that  Luetscher  is  mistaken  in  his  conclusion,  ''the  Con- 
vention was  the  only  state  machinery  that  ever  gained  a  foothold  in  New 
Jersey." 

29  New  Jersey  Journal,  December  17,  178S.  Considering  the  later 
success  of  this  ticket,  it  is  probable  that  much  correspondence  and  personal 
work  was  done  to  further  irs  interests. 


42  UNIVERSITY  OF  MISSOURI  STUDIES 

defense  of  the  action  of  the  caucus  and  no  address  or  appeal 
in  behalf  of  the  Western  ticket  appeared.  Newspaper  efforts 
were  directed  chiefly  towards  attacking  or  defending  individual 
candidates  rather  than  complete  tickets.  The  merits  of  several 
other  tickets  were  presented  from  time  to  time,  though  appar- 
ently none  became  known  as  distinctively  "Eastern"  in  opposi- 
tion to  the  Western  ticket.  According  to  the  provisions  of  the 
election  act,  the  governor  was  to  publish  in  the  newspapers  of 
the  state  and  of  Philadelphia  and  New  York,  eighteen  days  prior 
to  the  election,  the  list  of  persons  legally  nominated.  This  list 
came  out  January  19,  and  contained  fifty-four  names,  including 
all  of  the  chief  public  men  of  the  state^*^ 

The  polls  opened,  as  provided  by  law,  on  the  second  Wed- 
nesday in  February.  By  the  latter  part  of  the  month,  seven  of 
the  eight  eastern  counties  had  closed  their  polls  and  sent  their 
returns  to  the  governor.^i  On  February  27  the  governor  sum- 
moned the  council  to  meet  him  at  Elizabethtown  March  3,  but 
no  more  returns  had  been  received  by  that  date,  and  after  fixing 
upon  March  10,  as  the  time  for  closing  all  the  remaining  polls 
of  the  state,  the  council  was  adjourned  to  March  18.^-  In  the 
meantime  the  eastern  counties  were  becoming  incensed  at  the 
western  counties  for  not  sending  in  the  returns.  It  was  freely 
declared  that  the  delay  was  due  to  a  desire  to  profit  by  a  knowl- 
edge of  the  returns  from  the  eastern  part  of  the  state.^^  In  con- 
sequence of  this  hard  feeling,  Essex,  the  one  eastern  county  which 
had  not  made  up  its  returns,  determined  to  disregard  the  order 
of  the  governor  and  council  to  close  the  polls  by  March  10,  and 
to  simply  adjourn  the  polls  until  March  18.^^  By  the  time  of  the 
second  meeting  of  the  council  therefore,  while  the  five  western 

^  New  Jersey  Journal,  January  21,  17S9. 

31  Ibid.,  February  25,  17S9. 

32  Independent  Gazetteer,   March  14,  17S9;  New  Jersey  Journal,  March 
18,  1789. 

sspennsyhania  Packet,  March  16,  1789. 
«Ibid. 


THE    TR^VNSITIONAL    PERIOD,    1 788,    1 789  43 

counties  had  sent  in  their  returns  as  ordered,  the  Essex  polls 
were  still  open.^^  On  March  19,  Governor  Livingston  issued  a 
proclamation  reciting  the  provisions  of  the  election  act  which 
authorized  him  to  call  a  meeting  of  the  council  to  sum  up  the 
results  of  the  election,  and  declared  that  the  meeting  had  convened 
on  the  18th,  but  that  one  of  the  thirteen  counties  was  yet  to  be 
heard  from.  As  the  state  might  suffer  detrim'ent,  however,  by  re- 
maining unrepresented  in  Congress,  the  governor  and  privy  coun- 
cil thought  it  for  the  public  good  and  agreeable  to  the  true  intent 
and  meaning  of  the  act,  to  proceed  with  the  canvass  of  the  votes 
from  the  twelve  counties.  The  decision  of  the  legality  of  the 
election  as  thus  decided  was  to  be  left  "to  whom  it  appertains." 
Whereupon  James  Schureman,  Lambert  Cadwalader,  Elias  Bou- 
dinot  and  Thomas  Sinnickson  were  declared  to  have  received  the 
greatest  number  of  votes  from  the  twelve  counties.  "All  those 
whom  it  may  concern,"  the  proclamation  concluded,  "are  to  take 
notice  and  govern  themselves  accordingly. "^'^ 

Rumors  to  the  effect  that  this  did  not  end  the  affair,  that  Con- 
gress would  be  asked  to  interfere,  at  once  began  to  circulate.  It 
was  pointed  out  that  from  the  whole  tenor  of  the  proclamation 
three  conclusions  might  fairly  be  drawn.  These  were  that  the 
governor  himself  entertained  strong  doubts  of  the  legality  of 
the  election  and  returns ;  that  he  had  thought  proper  to  refer  the 
decision  thereupon  to  the  House  of  Representatives  ("to  whom  it 


35  Maryland  Journal,  March  31,  1789. 

^Independent  Gazetteer,  April  i,  17S9. 

The  returns  from  the  eastern  counties  gave  the  four  leading  places  to 
Schureman,  Clark,  Dayton  and  Hoops.  With  the  exception  of  Schureman 
the  members  of  the  Western  ticket  received  scant  support  in  the  east, 
Boudinot  dropping  to  ninth  place,  Cadwalader  to  tenth,  and  Sinnickson 
to  fourteenth.  (New  Jersey  Journal,  February  25,  1789.)  But  the  heavy 
vote  in  the  five  western  counties  for  the  caucus  nominees  overcame  the 
adverse  vote  of  the  east. 


44  UNIVERSITY  OF  MISSOURI  STUDIES 

appertains")  and  this  in  such  terms  as  carried  with  them  a  strong 
recommendation  to  the  House  to  take  it  under  consideration;  and 
lastly,  that  bare  certificates  agreeing  in  substance  with  the  procla- 
mation, instead  of  commissions  under  the  great  seal,  would  be 
issued  to  the  four  gentlemen  in  question.^?  The  situation  was 
briefly  described  by  Madison  in  a  letter  to  Washington,  as  fol- 
lows :  "In  New  Jersey  the  election  has  been  conducted  in  a  very 
singular  manner.  The  law  having  fixed  no  time  expressly  for 
closing  the  polls,  they  have  been  kept  open  three  or  four  weeks  in 
some  of  the  counties,  by  a  rival  jealousy  between  the  Eastern  and 
Western  divisions  of  the  State,  and  it  seems  uncertain  when  they 
would  have  been  closed  if  the  Governor  had  not  interposed  by 
fixing  on  a  day  for  receiving  the  returns,  and  proclaiming  the 
successful  candidates.  The  day  is  passed,  but  I  have  not  heard  the 
result.  The  Western  ticket is  supposed  to  have  pre- 
vailed, but  an  impeachment  of  the  election  by  the  unsuccessful 
competitors  has  been  talked  of."38 

This  talk  soon  developed  into  action.  Under  the  sanction 
of  one  of  the  candidates  from  Essex  (supposedly  Abraham 
Clark),  petitions  to  Congress  praying  that  the  election  might  be 
set  aside  were  circulated.^^  These  petitions  were  presented  to 
Congress  on  the  28th  of  April,  and  on  the  following  day  were 
referred  to  the  committee  of  elections.  The  friends  of  the 
Western  ticket  had  not  allowed  all  this  activity  to  pass  unnoticed. 
Counter  petitions  were  circulated  through  the  state  and  reached 
Congress  May  12  and  15.  On  the  25th  of  May  the  House  ap- 
pointed a  special  committee  before  whom  the  petitioners  were  to 
appear  and  present  such  proofs  and  allegations  as  they  might  wish 
to  ofiFer  in  support  of  their  petitions.    The  committee  was  also  to 

37  New  Jersey  Journal,  April  i,  17S9. 

**  Writings  of  Madison,  V.  330.  Writing  to  Jefferson,  Madison 
spoke  of  the  inaccuracy  of  the  New  Jersey  law  as  producing  a  delay 
almost  equal  to  that  in  New  York. 

^J  Maryland  Journal,  April  3,  17S9. 


THE    TRANSITIONAL    PERIOD,    1 788,     1 789  45 

hear  the  opponents  of  each  petition,  and  then  report  to  the  House 
all  the  facts  in  the  case.^*^ 

On  July  14,  the  committee  stated  to  the  House  that  cer- 
tain allegations  in  the  petition  required  testimony  which  they 
did  not  consider  themselves  authorized  to  collect,  as  it  would  have 
to  be  taken  in  New  Jersey.  The  question  had  also  arisen  as  to 
whether  the  petitioners  might  be  aided  by  counsel,  and  the  com- 
mittee requested  the  direction  of  the  House  on  these  matters.*^ 
A  long  debate  on  the  proper  mode  of  procedure  ensued,  but  no 
decision  was  reached,  and  the  subject  was  dropped  until  August 
18,  when  the  main  facts  of  the  New  Jersey  election  were  re- 
ported.-*- This  report  came  up  for  debate  September  i  and  2, 
and  both  petitioners  and  counter  petitioners  were  well  supported 
on  the  floor  of  the  House.  The  main  question  at  issue  was  over 
the  authority  of  the  New  Jersey  governor  to  declare  the  result 
of  the  election  before  the  returns  were  all  in.  Upon  the  premises 
all  were  agreed, — the  New  Jersey  law  declared  the  election  of 
Congressmen  should  be  in  the  same  manner  as  the  election  of 
representatives  for  the  state  legislature;  the  law  for  the  elec- 
tion of  the  latter  fixed  no  time  of  limitation  for  the  receipt  of 
returns,  but  the  practice  had  been  to  send  them  in  time  to  de- 
clare the  result  before  the  date  of  meeting  of  the  legislature; 
the  late  law  had  evident  respect  to  the  time  at  which  Congress 
was  to  meet,  and  so  by  reasonable  construction  the  intention  of 
the  law  was  that  the  election  should  be  declared  before  the  day 
appointed  for  the  assembling  of  Congress.  But  at  this  point 
the  arguments  diverged.  Upon  the  one  side  it  was  held  that  the 
result  should  have  been  declared  on  March  3,  and  that  the  gov- 
ernor had  no  right  to  extend  the  time  for  receiving  returns  beyond 
that  day.  If  he  could  extend  the  time  one  day  he  could  do  it  for 
an  unlimited  numiber  of  days,  and  so  defeat  the  law.     But,  ad- 

*>  House  Journal,  First  Congress,  p.  40. 
^'  Lloyd's  Congressional  Register,  II.  76. 
*^  House  Journal,  p.  S3. 


46  UNIVERSITY  OF  MISSOURI  STUDIES 

mitting  that  he  had  a  right,  it  became  a  question  as  to  how 
long  he  should  delay.  The  law  declared  that  the  result  was  to 
be  fixed  by  the  greatest  number  of  votes  from  the  whole  state. 
Evidently  then,  the  governor  would  have  to  wait  until  all  the 
votes  were  in.  This  would  put  the  power  of  defeating  the  law 
into  the  hands  of  a  single  county,  but  that  was  the  fault  of  the 
state  assembly  in  passing  such  an  imperfect  law,  and  the  state 
would  have  to  suffer. 

This  construction  was  pronounced  absurd  by  those  who  sup- 
ported the  validity  of  the  election.  It  might  have  happened,  they 
argued,  that  no  county  would  have  made  returns  by  March  3; 
would  it  then  have  been  required  that  the  governor  declare  the 
persons  elected?  On  the  other  hand,  to  wait  until  all  the  re- 
turns had  been  made  would  have  placed  the  power  of  defeating 
the  election  with  one  county, — a  construction  foreign  to  the  spirit 
of  the  law  and  disastrous  to  the  state.  This  was  one  of  those 
cases  in  which  the  executive  might  properly  interpose  his  dis- 
cretionary authority  where  the  law  was  dubious  and  yet  must  be 
carried  into  operation.  Such  authority  had  been  properly  used 
to  postpone  the  determination  of  the  results  for  such  a  reasona- 
ble time  as  would  allow  the  returns  to  be  sent  in.  At  the  end  of 
that  time  twelve  of  the  thirteen  counties  had  actually  made  re- 
turns, and  Congress  was  assembling  with  the  state  unrepresented. 
The  governor  was  then  justified   in  announcing  the  election.-*^ 

After  a  debate  of  two  days  this  latter  view  was  accepted, 
and  the  New  Jersey  members  were  declared  to  be  duly  elected 
and  returned.*^ 

Georgia  and  Maryland  each  adopted  a  plan  which  was  evi- 
dently a  compromise  between  the  general  ticket  and  district  sys- 
tems. In  the  Alaryland  assembly  a  committee  which  had  been 
appointed  to  bring  in  a  bill  for  the  election  of  representatives  re- 
ported November  24,  1788.     Its  plan  was  that  the  people  of  the 

<3New  Jersey  Journal,  September  9  and  16,  17S9. 
**  House  Journal,  p.  95. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  47 

western  shore,  by  an  election  in  each  county,  elect  four  repre- 
sentatives, and  the  people  of  the  eastern  shore  in  the  same  man- 
ner elect  two.^5  This  was  negatived  and  it  was  resolved  instead 
that  the  state  be  equally  divided  into  six  districts.  A  propo- 
sition that  each  district  elect  one  representative  was  voted  down, 
and  then  it  was  resolved  that  the  people  of  the  state  entitled 
to  vote  should  vote  for  six  persons,  one  to  be  from  each  of  the 
six  districts,  the  person  in  each  district  receiving  the  greatest 
number  of  votes  of  all  the  candidates  in  that  district  to  be  de- 
clared elected.  The  bill  as  finally  passed  carried  out  this  resolu- 
tion. In  addition  it  was  enacted  that  the  election  should  be  viva 
voce  and  should  be  held  the  first  Wednesday  of  the  following 
January.^^ 

While  the  Antifederalists  in  Maryland  were  in  a  decided 
minority,  the  feeling  between  the  two  parties,  owing  to  the  tac- 
tics of  the  Federalists  in  the  state  convention,  was  extremely 
bitter.^"  Soon  after  the  passage  of  the  election  law,  both  par- 
ties took  steps  to  carry  their  contest  to  the  polls.  The  ticket 
of  the  Antifederalists  was  announced  as  coming  from  "a  number 
of  gentlemen  who  are  zealous  guardians  of  the  rights  of  the 
people,  and  avowedly  opposed  to  that  aristocratic  spirit  and  in- 
fluence which  are  dangerous  to  Public  Liberty,  and  already  too 
prevalent  in  the  councils  of  this  state."'* ^  Its  promoters  warmly 
recommended  their  nominees  to  the  citizens  of  INIaryland  as  a 
respectable  and  safe  representation  in  that  crisis  of  public  affairs. 

The  Federal  ticket  was  brought  out  at  Annapolis  by  a  cau- 
cus of  members  of  the  general  assembly  and  friends  of  the  Con- 

^*  Maryland  Journal,  January  13,  17S9. 
^''Maryland  Session  Laws,  December  22,  17S8. 
^'Elliot's  Debates,  II.  547-556. 

*^  Maryland  Journal,  December  26,  1788.     The  ticket  included  George 
Dent,  J.  Seney,  J.  F.   Mercer,  Samuel  Sterett,  W.  V.  Murray  and  A.  Faw 


48  UNIVERSITY  OF  MISSOURI  STUDIES 

stitution.-*^  It  was  imqiediately  indorsed  at  a  meeting  in  Balti- 
more and  a  committee  to  advertise  it  throughout  the  State  was 
appointed.  An  address  to  be  sent  to  influential  men  in  each  dis- 
trict and  to  be  published  in  the  newspapers  was  adopted.  "With 
respect  to  the  gentlemen  nominated  for  Representatives,"  so  the 
address  ran,  "we  have  reason  to  believe  that  the  framers  of  the 
ticket  were  careful  to  select  persons  acceptable  throughout  the 
state  for  honor  and  integrity,  unequivocal  friends  to  the  new 
Constitution,  of  mature  experience  in  governmental  concerns,  and 
well  acquainted  with  the  general  interests  of  the  United  States ; 
and  we  trust,  if  elected,  that  they  will  so  approve  themselves 
to  their  countrymen  and  the  World.  But  should  the  friends  of 
the  new  government,  in  the  different  districts,  unfortunately  con- 
ceive that  they  can  find  men  better  qualified  for  Representatives 
than  the  above  named,  and  vote,  each  according  to  their  several 
opinions,  without  concerting  a  new  ticket,  the  consequence  must 
be,  the  certain  loss  of  the  Federal  Ticket,  without  their  carrying 
the  men  they  vote  for.  Such  a  measure,  at  this  juncture,  it  is 
justly  apprehended,  would  throw  everything  into  the  hands  of  the 
Antifederalists,  who  will,  no  doubt,  on  this  as  on  former  occa- 
sions, be  unanimous  in  support  of  their  ticket. 

"The  necessity  of  a  strict  union  of  votes  among  the  Federal- 
ists will  further  appear  from  contemplating  the  Antifederal  ticket. 
The  contrivers  of  that  ticket  have  artfully  introduced  into  it  some 
Federal  characters,  in  the  hope  that  their  deserved  popularity,  in 
their  several  counties,  would  draw  to  them  the  votes  which 
would  otherwise  be  given  to  members  of  the  Federal  ticket, ^'^ 

^9  Maryland  Journal,  December  30,  17SS.  The  Federal  ticket  was  as 
follows:  M.  J.  Stone,  J.  Seney,  Benj.  Contee,  William  Smith,  George 
Gale,  Daniel  Carroll. 

«« Joshua  Seney,  W.  V.  Murray  and,  probably,  A.  Faw  were  the 
Federalists  who  were  placed  on  the  Antifederalist  ticket.  This  was  the 
same  plan,  it  will  be  remembered,  by  which  the  Pennsylvania  Antifeder 
alists  had  hoped  to  win. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  49 

by  which  means  they  expect  to  divide  the  Federal  interest,  and 
thereby  increase  the  chances  in  favor  of  the  Antifederalists ;  for 
it  is  plain  that  whatever  will  lessen  the  number  of  votes  for  any 
member  in  the  Federal  ticket,  will  be  a  decided  advantage  to  some 
member  in  the  opposition  ticket — and  this  advantage  must  be  in 
favor  of  the  Antifederalists  who  will  vote  alike,  and  without  any 
division."^^ 

Beyond  the  issuing  of  this  address,  little  electioneering  was 
done  because  of  lack  of  time,  for  the  election  occurred  January 
7.  The  general  returns  showed  that  the  Federal  voters  had 
heeded  the  above  appeal  to  unite  on  the  caucus  ticket,  and,  as 
was  predicted,  the  Antifederalists  had  also  voted  solidly  for  their 
party.  Few  votes  were  cast  for  candidates  outside  of  these  two 
lists."^-    The  Federalists  were  completely  successful,  receiving  over 

^^  Maryland  Journal,  December  30,  1788. 

5^  Returns  given  in  the  Maryland  Journal,  January  23,  17S9. 

The  following  extract  of  a  letter  from  a  German  farmer  in  Wash- 
ington County,  Maryland,  gives  a  good  description  of  the  manner  in 
which  the  election  was  conducted  in  country  districts.  Washington 
County  cast  1164  votes  for  ev^ery  one  of  the  successful  candidates  on  both 
the  congressional  and  electoral  tickets,  and  no  votes  for  any  other  candi- 
date. This  letter,  written  to  a  friend  in  a  less  unanimous  district,  throws 
light  on  the  reason  for  the  unanimity  of  Washington  County. 

"We  had  pain  when  we  heard  of  the  people  of  your  district  that  they 
were  wrong,  and  we  thought  it  right  to  call  the  friends  of  the  new  govern- 
ment to  give  in  their  votes  at  the  court-house,  so  we  made  out  so  manv  as 
1 167  [1164]  for  the  Federal  ticket,  and  no  man  said  against  it.  The  last 
day  you  would  wonder  to  see  so  much  people  together,  two  or  three 
thousand  maybe,  and  not  an  Anti.  An  ox  roasted  whole,  hoof  and  horn, 
was  divided  into  morsels,  and  every  one  would  take  a  bit.  How  foolish 
people  are  when  so  many  are  together,  and  all  good-natured.  They  were 
as  happy  to  get  a  piece  of  Federal  ox  as  ever  superstitious  Christians  or 
Anti-Christians  were,  to  get  relics  from  Jerusalem.  .  .  .  Much  attachment 
and  good  will  is  shown  for  the  cause.  I  was  afraid  of  mischief  by  the 
cannon,  and  such  numbers  of  folks  together;  but  our  people  are  well- 
minded,  and  we  hope,  under  the  new  government,  our  happiness  will  be 
made  secure.  ...  I  am  sorry  for  your  differences,  but  they  don't  injure 
us.  Even  the  name  Federal  vi\\\  soon  be  forgotten  here;  there  is  no  Autt 
to  keep  it  in  remembrance."     Pennsylvania  Packet,  January  23,  1789. 

4 


50  UNIVERSITY  OF  MISSOURI  STUDIES 

two-thirds  of  the  total  vote  cast.  Political  contention  did  not 
cease,  however,  with  the  election.  Newspapers  busied  themselves 
at  once  expressing  the  dissatisfaction.  The  election  law  came  in 
for  its  share  of  blame.  One  writer  took  up  each  of  the  six 
districts  of  the  state,  showed  the  number  of  estimated  votes, 
the  number  of  votes  actually  cast  and  for  whom  cast,  and  reached 
two  conclusions.  His  first  was  that  of  20700  votes  in  the  state, 
only  8195  were  cast.^^  jjig  second  was  that  had  the  law  allowed  the 
people  of  each  district  to  vote  for  one  representative,  not  confin- 
ing them  to  elect  a  resident  of  the  district  but  one  of  the  state, 
the  following  persons,  on  the  face  of  the  returns,  would  have  been 
elected:  Joshua  Seney,  Daniel  Carroll,  Samuel  Sterett,,  J.  F. 
Mercer,  George  Dent  and  George  Gale — that  is,  three  Federalists 
and  three  Antifederalists,  He  characterized  the  law  as  unconsti- 
tutional because  it  added  another  qualification  for  representa- 
tives.^^ In  answer  it  was  acknowledged  that  since  the  Feder- 
alists had  been  in  power  in  the  state  assembly,  they  had  con- 
structed the  law  in  such  a  manner  as  to  make  the  success  of  the 
Federal  ticket  most  probable.  But  it  was  also  maintained  that, 
had  the  opposite  party  been  the  stronger,  they  would  have  taken 
that  advantage  for  themselves.^*^ 

Georgia,  through  its  militia  organization,  was  already  di- 
vided into  three  brigade  districts.  As  the  state  was  entitled  to 
three  representatives,  it  was  enacted  that  each  voter,  while  voting 
for  three  persons,  must  choose  one  from  each  of  these  three  sec- 
tions. Candidates  had  to  be  of  three  years'  standing  residence 
in  their  respective  districts,  and  the  election  was  appointed  for 
February  9,  1789.^® 

^3  Other  writers  contended  that  his  estimate  of  the  number  of  voters 
was  too  low,  but  at  any  rate  the  number  of  votes  cast  was  considerably 
under  one-half  the  number  of  electors  in  the  state. 

**  Maryland  Journal,  February  3,  1789. 

^Ibid.,  February  13,  1789. 

^*"An  Act  for  appointing  the  time,  manner,  and  places  for  holding 
elections  for  representatives  in  Congress,"  January  23,  17S9.  The  sub- 
stance of  this  act  is  in  the  Independent  Gazetteer,  March  11,  17S9. 


THE    TRANSITIONAL    PERIOD,    1788,    I789  5I 

Little  is  known  of  the  Georgia  election  beyond  this  date  and 
the  names  of  the  candidates  chosen.  The  law  was  approved  Jan- 
uary 23,  leaving  little  time,  even  had  there  been  inclination,  for 
electioneering.  In  the  first  or  eastern  district,  General  James 
Jackson  was  chosen  over  Henry  Osborne.  The  latter  had  voted  in 
favor  of  the  ratification  of  the  Constitution  in  the  state  con- 
vention, but,  so  far  as  is  known  Jackson  was  also  on  that  side.^^ 
In  the  second  or  middle  district,  Abraham  Baldwin  was  returned, 
and  in  the  third  or  western,  George  Mathews.  Baldwin  had 
been  a  member  of  the  Continental  Congress  from  1785  to  1788, 
and  a  member  of  the  Federal  Convention  at  Philadelphia.  Mat- 
hews had  been  a  member  of  the  state  convention  which  ratified 
the  Constitution. 

A  still  nearer  step  to  the  pure  district  system  was  taken 
by  the  two  states  of  New  York  and  South  Carolina.  The  latter 
state  was  divided  by  the  legislature  into  five  districts,  each  to 
choose  one  member,  but  a  candidate  did  not  need  to  be  an  in- 
habitant of  the  district  for  which  he  was  chosen.  It  was  pro- 
vided that  if  a  person  was  chosen  by  two  diflferent  districts,  he 
was  to  decide  within  twenty  days  which  he  would  serve,  and  a 
second  election  was  to  be  held  in  the  district  left  without  a  rep- 
resentative. The  election  was  to  be  held  at  the  usual  time  for 
the  election  of  assemblymen.^^  According  to  the  state  constitution, 
this  was  the  last  Monday  in  November  and  the  day  following. 

For  the  election  in  that  state  the  records  are  just  as  bare 
as  for  Connecticut,  but  from  the  results  it  seems  that  the  contest 
was  more  exciting.     Of  the  five  representatives  returned,   four 

''"Georgia  had  ratified  the  Constitution  unanimously.  We  are  thus 
left  without  this  means,  used  in  many  of  the  other  states,  of  checlcing  off 
the  opponents  of  the  Constitution.  U.  B.  Phillips,  in  his  Georgia  and 
State  Rights,  American  Historical  Association  Reports,  1901,  II.  21, 
gives  the  only  known  records  of  the  Georgia  convention. 

^Statutes  at  large  of  South  Carolina,  V.  84..     November  4,  178S. 


52  UNIVERSITY  OF  MISSOURI  STUDIES 

were  Antifederalists.^^  From  the  district  of  Camden  came  Gen- 
eral Thomas  Sumter  who  had  endeavored  in  the  state  conven- 
tion to  have  action  on  the  Constitution  postponed.  From  Ninety- 
six  was  returned  Aedanus  Burke,  who  had  worked  and  voted 
against  the  Constitution.  And  from  the  other  two  country  dis- 
tricts Daniel  Huger,  and  T.  T.  Tucker,  both  former  delegates 
to  the  Continental  Congress,  but  both  Antifederalists,  were  elected. 
Charleston  alone  returned  a  Federalist,  William  Smith. 

The  choice  of  Smith  gave  rise  in  Congress  to  the  first  case 
of  contested  elections.  On  April  15,  1789,  David  Ramsay,  of 
South  Carolina,  petitioned  the  House  to  set  aside  the  election 
of  Smith,  alleging  that  at  the  time  of  his  election  lack  of  citizen- 
ship for  the  requisite  seven  years  had  rendered  him  ineligible. 
This  case  was  taken  up  carefully  by  Congress,  as  the  mode  of  in- 
vestigation and  the  decision  might  be  precedents  for  all  future 
cases.  It  was  decided  on  April  18,  that  the  proofs  of  Smith's 
ineligibility  should  be  presented  to  the  committee  on  elections. 
Smith  to  have  the  right  to  examine  witnesses  and  to  introduce 
counter  proofs.  A  month  later,  after  the  committee  had  presented 
a  statement  of  facts,  a  lengthy  debate  ensued  over  the  question 
as  to  whether  to  continue  the  proceedings  in  the  House,  or  to 
recommit  with  instructions  to  read  the  documents  and  to  present 
a  shortened  report.  On  the  grounds  that  the  Constitution  had 
provided  that  the  House  should  be  judge  of  its  own  elections, 
and  that  it  would  be  very  improper  to  delegate  this  power  of 
judgment  to  any  group  of  men,  the  House  decided  to  examine 
the  evidence  and  to  give  decision  itself. 

It  was  shown  against  Smith  that  he  was  born  in  1758  while 

^^Hildreth  (IV.  ch.  i)  concludes  that  "a  sudden  revolution  in  the 
politics  of  South  Carolina"  had  caused  the  election  of  this  Antifederal 
delegation.  This  is  not  borne  out  by  the  facts  for  the  country  districts 
which  elected  Antifederalists  had  voted  in  the  legislature  against  calling  a 
state  convention,  and  had  voted  in  the  convention,  though  with  less 
unanimity,  against  the  Constitution.     Elliot's  Debates,  IV.  253  et  seq. 


THE    TR,-\NSITIONAL    PERIOD,    I788,    I789  53 

South  Carolina  was  still  a  British  colony,  that  his  parents  had 
died  many  years  before  the  Declaration  of  Independence,  that  he 
had  resided  abroad  from  1770  to  1783,  and  that  he  had  been 
elected  to  Congress  in  1788,  not  having  been  a  citizen  of  the 
United  States  the  constitutional  period  of  seven  years.  Ramsay 
contended  that  citizenship  in  the  United  States  could  be  acquired 
only  by  birth  or  inheritance,  by  being  a  party  to  the  Revolution, 
by  taking  an  oath  of  fidelity  to  some  one  of  the  states,  by  tacit 
consent,  or  by  adoption.  By  none  of  these  modes,  the  petitioner 
alleged,  had  Smith  gained  citizenship. 

In  reply  Smith  submitted  that  South  Carolina  had  in  fact 
considered  him  a  citizen.  Under  the  state  constitution,  no  one 
was  eligible  to  a  seat  in  the  legislature  until  he  had  resided 
three  years,  nor  to  a  seat  in  the  council  until  he  had  resided  five 
years,  in  the  state,  yet  he  had  held  a  seat  in  both  bodies  before 
he  had  been  two  years  in  the  state  and  no  one  had  objected.  His 
parents  indeed  had  died  before  independence  was  declared  but  his 
guardians,  who  stood  in  loco  parentis,  were  residents  of  Charles- 
ton. As  a  member  of  the  society  of  South  Carolina,  he  owed 
and  paid  allegiance  to  the  King  of  England  before  the  Revolu- 
tion, but  when  that  society  separated  from  Great  Britain  his 
allegiance  was  transferred  with  that  of  the  society  of  which  he 
was  a  member.  The  legislature  of  South  Carolina  had  taken 
this  same  position  in  an  act  passed  in  1779,  by  which  it  was  pro- 
vided that  young  men  sent  abroad  for  their  education  should  be 
allowed  to  remain  until  they  reached  the  age  of  twenty-two,  after 
which,  if  they  had  not  returned,  they  should  be  doubly  taxed.  This 
implied  that  citizenship  remained  in  the  state,  though  there  was 
a  penalty  to  pay  for  absence. 

Taking  these  statements  into  consideration,  the  House  de- 
cided by  a  vote  of  thirty-six  to  one  that  William  Smith,  at  the 
time  of  his  election  had  been  seven  years  a  citizen  of  the  United 
States.co 

«>  Clarke  and  Hall,  Cases  of  contested  elections  in   congress,    1789-1S34, 
PP-  23-37- 


54  UNIVERSITY  OF  MISSOURI  STUDIES 

In  New  York,  the  bill  which  passed  the  lower  house  De- 
cember 22,  1788,  providing  for  the  election  of  United  States 
senators  and  representatives  and  presidential  electors,  and  which 
afterwards  failed  in  the  senate,  divided  the  state  into  six  dis- 
tricts, each  to  choose  one  representative  from  the  state  at  large. 
Efforts  were  made  to  amend  in  the  house  by  including  the  con- 
dition that  the  person  chosen  by  a  district  should  be  an  inhabitant 
of  that  district,  but  this  was  rejected  on  the  ground  that  it  pre- 
scribed an  additional  qualification,  and  so  was  unconstitutional. 
Efforts  were  also  made  to  amend  by  a  proposal  to  strike  out  the 
district  feature  because,  it  was  argued,  persons  chosen  by  the 
districts  did  not  represent  the  state.  This  was  rejected  on  the 
ground  that  the  people  could  not  possibly  be  acquainted  with 
six  proper  persons  throughout  the  state,  and  so  would  not  know 
for  whom  to  vote.*^^  The  bill,  which  finally  became  a  law  did  not 
materially  differ  from  the  above.  Each  qualified  person  was  to 
vote  for  one  representative  who  should  be  an  inhabitant  of  the 
state.  The  election  was  to  be  held  on  the  first  Tuesday  in  March, 
and  the  vote  canvassed  and  the  successful  candidates  announced 
the  first  Tuesday  in  April,  1789.^2  xhis  was  the  latest  date  fixed 
by  any  of  the  eleven  states  for  the  election  of  representatives. 

Judged  by  the  lower  house  of  the  assembly  of  1788- 1789, 
the  state  was  clearly  Antifederal,  and  had  a  general  ticket  sys- 
tem prevailed  this  party  would  probably  have  elected  the  full  state 
contingent.  But  when  it  was  the  district  system  that  went  into 
operation,  the  Federalists  had  high  hopes  of  electing  two  mem- 
bers from  the  southern  part  of  the  state,  the  stronghold  of  their 
party.*'^  As  the  campaign  progressed,  the  Antifederalists  were 
seen  to  be  losing  ground,  and  before  the  returns  were  canvassed, 
the  Federalists  claimed  the  election  of  William  Floyd  from  the 

*'  Pennsylvania  Packet,  January  6,  1789. 

8*  Session  Laws,  January  27,  1789. 

63  Alexander  Hamilton  to  T.  Sedgwick.     Works  of  Hamilton,  IX.  456. 


THE    TR.\NSITIONAL    PERIOD,    1 788,    1 789  55 

district  composed  of  the  counties  of  Suffolk,  Queens,  Kings,  and 
Richmond,  of  John  Lawrence  from  the  New  York  city  district, 
and  of  Egbert  Benson  from  the  district  of  Dutchess  and  Wor- 
cester counties.64  The  final  canvass  showed  not  only  the  election 
of  these  three,  but  also  of  Peter  Sylvester,  a  Federalist  from  the 
strong  Antifederal  district  of  Columbia,  Washington,  and  Clin- 
ton counties.65  The  Antifederalists  were  successful  in  two  dis- 
tricts. From  Ulster  and  Orange  counties  they  elected  John  Hat- 
horn,  and  from  the  district  of  Albany,  Jeremiah  Van  Rensselaer. 

The  states  adopting  a  pure  district  system  were  Massachu- 
setts and  Virginia.  The  committee  in  the  Massachusetts  general 
court  which  had  the  matter  in  charge  presented  a  report  November 
4,  1788.  In  so  far  as  it  related  to  the  election  of  representatives, 
it  provided  for  the  division  of  the  state  into  eight  districts.  Each 
of  these  districts  was  to  choose  one  representative,  but  the  in- 
habitants were  not  obliged  to  confine  their  choice  to  a  citizen  of 
that  district.  The  districts  were  to  be  made  as  nearly  equal  as 
possible  without  dividing  counties.  An  absolute  majority  vote 
only  could  elect.  In  case  no  person  received  such  a  majority  the 
voters  were  to  decide  at  a  second  poll  between  the  two  candidates 
highest  on  the  first  returns.  Should  these  two  receive  an  equal 
number  of  votes  at  the  second  trial,  the  members  of  the  legis- 
lature   from   that   district   were   to   choose   between   the    two.^^ 

^Madison  to  Washington,  March  19,  1789.  "The  Federalist  party 
calculates  on  an  equal  division  of  the  six."     Works  of  Madison,  V.  330. 

^  Life  of  Peter  Van  Schaack,  by  Henry  C.  Van  Schaack,  New  York, 
1842,  p.  429. 

In  Dutchess  and  Worcester  counties,  Benson  was  hard  pushed  by 
T.  Bailey.  The  latter  received  574  votes  while  Benson  had  only  ten  more. 
Freeman's  Journal,  April  15,  1789. 

R.  B.  Lee  wrote  to  his  friend,  L.  Powell  of  Virginia,  April  13,  1789, 
"Strange  that  the  sense  of  the  people  of  this  state  [New  York]  should  also 
be  contrary  to  that  of  the  legislature."     Branch  Papers,  I.  220. 

''''  Massachusetts  Centinel,  November  5,  17S8,  et  seq. 


56  UNIVERSITY  OF  MISSOURI  STUDIES 

Against  the  strong  opposition  of  Berkshire  county,  the  members 
from  which  declared  it  had  not  received  justice  in  districting  the 
state,  the  report  was  adopted,  but  with  important  changes.  It  was 
decided  that  each  representative  must  be  an  inhabitant  of  the  dis- 
trict from  which  he  was  chosen,  and  no  provision  was  made  for 
Hmiting  the  number  of  candidates  to  two  in  case  a  second  elec- 
tion was  necessary.  If  no  choice  was  made  at  the  second  election 
a  third  was  to  be  held,  and  so  on  until  there  was  a  choice.*^' 

Political  activities  in  Massachusetts  cannot  readily  be  fol- 
lowed, partly  because  there  was  no  extra-legal  machinery  for 
nominating  candidates,  and  partly  because  personal  electioneer- 
ing was  despised  and  would  have  hurt  rather  than  helped  the 
candidates'  chances,  but  chiefly  because  the  district  system  local- 
ized party  conflicts.  Only  a  few  months  before,  in  choosing 
members  of  the  state  convention  to  act  upon  the  national  Con- 
stitution, the  mass  of  voters  had  shown  itself  strongly  Antifederal, 
and  it  was  wholly  because  of  the  tact  and  talent  of  the  Federal 
leaders  that  the  Constitution  had  been  ratified.  Since  that  time 
public  sentiment  had  changed  considerably  in  favor  of  the  Con- 
stitution party,^^  and  the  state  was  now  so  evenly  divided  that 
in  nearly  every  district  the  election  was  warmly  contested.  As 
the  resolve  of  the  general  court  fixing  upon  December  i8  for 
election  day  was  not  passed  until  November  20,  less  than  a  month 
intervened  in  which  the  respective  parties  might  decide  upon 
suitable  candidates.  In  that  short  time  many  names  were  proposed. 
Without  time  or  machinery  for  the  elimination  of  surplus  aspir- 

*"  Acts  and  Resolves  of  Massachusetts,  October  Session,  17SS. 

^  "A  striking  instance  of  the  rapid  progress  of  federal  principles  was 
seen  at  Attleborough  ....  at  the  election  of  a  representative  for  the  new 
federal  government.  The  Hon.  George  Leonard  had  8S  votes,  the  Hon. 
Phanuel  Bishop  12  votes.  By  the  above  vote  it  appears  that  Attleborough 
is  now  more  than  7  to  i  federal,  whereas  in  April,  17S7,  said  Hon.  Bishop 
had  a  majority  of  votes  in  said  town  for  a  senator."  Pennsylvania  Packet, 
January  6,  17S9. 


THE    TR.\NSITIONAL    PERIOD,    1/88,    I789  57 

ants,  union  of  party  sentiment  was  impossible,  and  where  such 
a  union  would  frequently  have  brought  party  success,  its  lack 
resulted  either  in  defeat  or,  because  the  other  party  was  equally 
divided,  at  best  a  draw. 

Four  of  the  eight  districts,  however,  managed  to  elect  rep- 
resentatives at  the  first  trial.  In  Suffolk  the  three  leading  candi- 
dates were  Samuel  Adams,  Fisher  Ames  and  General  Heath,  all 
Federalists  who  had  supported  ratification  in  the  state  conven- 
tion. Adams,  known  as  the  "amendment  monger,"  was  sup- 
posed to  be  only  luke-warm  in  his  advocacy  of  the  Constitution 
and,  while  strongly  defended  by  a  few  of  his  Federalist  friends, 
was  supported  mainly  by  the  Antifederalists.  Ames,  on  the  other 
hand,  had  debated  eloquently  for  the  Constitution,  and  although 
he  had  seen  far  less  public  service  than  Adams  or  Heath,  was 
more  popular  at  the  moment.  In  spite  of  the  deflection  of  votes 
to  Heath,  Ames  prevailed  in  the  election  by  a  narrow  majority. 
The  southern  district  (Plymouth  and  Barnstable)  easily  returned 
George  Partridge,  a  Federalist  and  a  former  member  of  the  Con- 
tinental Congress,  who  ran  against  James  Warren,  prominent  in 
the  Revolution.  The  district  composed  of  Bristol,  Dukes,  and 
Nantucket  elected  General  Leonard,  and  the  eastern  or  Maine 
district  returned  George  Thacher,  both  Federalists.**^  For  the 
four  remaining  districts  a  second  election  was  ordered,  to  take 
place  January  29. 

In  Middlesex  at  the  first  trial,  Elbridge  Gerry,  conspicuous 
in  public  service  for  years,  but  one  of  the  three  delegates  at  the 
Philadelphia  Convention  who  at  the  last  minute  had  refused  to 
sign  the  Constitution,  was  pitted  against  Nathaniel  Gorham,  a 
staunch  Federalist  and  supporter  of  the  Constitution  as  well  as 
a  colleague  of  Gerry  at  Philadelphia.  Gorham  would  probably 
have  been  chosen  had  not  J.  B.  Varnum  and  General  J.  Brooks, 
two  members  of  the  state  convention  who  had  favored  the  Con- 

**  Pennsylvania  Packet,  January  20,  17S9. 


58  UNIV^ERSITY  OF  MISSOURI  STUDIES 

stitution,  also  been  candidates.'*^  Gorham  withdrew  before  the 
second  trial  "^  and  Gerry  was  elected,  but  only  after  he  had 
published  an  address  to  the  electors  declaring  his  opinion  that 
as  the  new  system  had  been  adopted,  every  citizen  of  the  ratifying 
states  was  in  duty  bound  to  support  it,  and  that  opposition  to  a 
due  administration  of  it  would  not  only  be  unjustifiable,  but  highly 
criminal.'^ 

The  contest  in  Essex  at  the  first  trial  was  between  men  rather 
than  parties,  for  the  two  principal  candidates  were  both  Federal. 
Neither  was  able  to  score  a  victory  because  over  one-third  of  the 
total  vote  was  scattered  among  the  large  number  of  other  can- 
didates entered.  At  the  second  election,  January  29,  Benjamin 
Goodhue,  an  able  merchant  and  a  state  senator,  was  chosen  by 
a  large  majority."^ 

The  greatest  struggle  in  Massachusetts  took  place  in  the  two 
western  districts,  the  chief  seat  of  Shays'  Rebellion.  Neither  of 
these  districts  was  able  to  make  a  choice  at  the  first  or  second 
poll,  and  a  third  was  accordingly  ordered  for  March  2.  In  Wor- 
cester district  the  two  foremost  candidates,  Jonathan  Grout  and 
Timothy  Paine,  were  both  Antifederalists.  Artemas  Ward  was 
their  chief  opponent.  A  union  of  Antifederalists  would  have  re- 
sulted in  an  election  at  the  first  trial,  but  it  was  not  until  the  third 
that  the  friends  of  Grout  by  a  great  effort  succeeded  in  electing 
him.  Grout  had  been  a  Shays  partisan  in  1786,  and  at  the  state 
convention  had  voted  against  the  Constitution.  In  the  district 
composed  of  Hampshire  and  Berkshire  counties,  Thomas  Sedg- 
wick, a  Federalist  of  Berkshire,  was  opposed  to  William  Lyman 
an  Antifederalist  of  Hampshire.     The  local  feeling  between  the 

'"The  result  of  the  first  trial  was  as  follows:  total  vote  cast  1473, 
necessary  for  a  choice  737,  Gorham  received  536,  Gerry  384,  Varnum  254, 
Brooks  106,  and  scattering  193.     Pennsylvania  Packet,  January  :o.   1789. 

"Pennsylvania  Packet,  January  19,  1789. 

"Austin's  Gerry,  II.  93. 

"'Massachusetts  Centinel,  February,  1789. 


THE    TRANSITIONAL    PERIOD,     I788,     I789  59 

two  counties  became  almost  as  bitter  as  the  party  feeling."^  To 
complicate  the  difficulty  there  were  several  other  candidates; 
Skinner  of  Berkshire,  a  Federalist  who  had  voted  for  ratification 
in  the  state  convention  drew  many  votes  from  Sedgwick,  while 
Whiting  of  Hampshire  lessened  the  Lyman  vote.  A  fourth  trial 
and  following  that  a  fifth  were  necessary  before  Sedgwick  was 
chosen  May  ii,  by  a  majority  of  eight  in  a  total  vote  of  four 
thousand  and  ninety-five.'^^  This  finally  completed  the  Massa- 
chusetts delegation,  six  of  her  representatives  being  Federal  and 
two  Antifederal. 

In  Virginia  it  was  the  part  of  political  wisdom  for  the  Anti- 
federalists,  who  controlled  the  legislature,  to  divide  the  state 
into  districts.  In  that  way  they  were  sure  to  elect  a  part  of  the 
state  quota  of  ten  members — and  politically  diplomatic,  to  say 
the  least,  was  the  districting  they  did.  To  the  constitutional 
qualifications  for  representatives  were  added  the  further  require- 
ments that  the  candidate  be  a  "discreet  and  proper  person"  who 
was  a  freeholder  and  had  been  a  bona  fide  resident  of  his  district 
for  twelve  months."*^    Within  seven  days  after  the  election,  which 

'*  Hampshire  Gazette,  May  6,  1789. 

"The  towns  were  allowed  two  weeks  in  which  to  send  in  their  returns. 
Owing  to  the  negligence  of  returning  officers,  seventeen  towns  favorable  to 
Lyman  were  unreturned  at  the  last  election.  Had  the  vote  in  these  towns 
been  properly  sent  in,  Lyman  would  have  been  elected.  Massachusetts 
Centinel,  May  30,  1789. 

The  vote  tor  Sedgwick  and  Lyman  at  the  different  trials  was  as 
follows: 

To'al  vote.  Sedsjwick.  Lyman. 

December  iS,  2201  8oi  330 

January  29,  2513  716  717 

March  2,  4731  1449  1557 

March  30,  3328  1564  i."J09 

May  II,  4095  -056  1958 

Massachusetts  Centinel,  May  30,  1789,  and  previous  numbers. 

"^Hening.  XH.  653  et  seq. 


60  UNIVERSITY  OF  MISSOURI  STUDIES 

was  to  be  held,  February  2,  1789,  the  sheriffs  in  each  district 
were  to  meet,  canvass  the  vote  and  issue  a  certificate  to  the  can- 
didate standing  highest. 

The  majority  in  the  assembly  "^  was  well  organized  and  well 
directed,  ready  to  make  the  most  of  its  advantage.  Certain 
parts  of  the  state  were  known  to  be  strongly  Federal,  and  other 
parts  as  strongly  Antifederal.  In  districting,  the  latter  party  en- 
deavored to  group  the  counties  so  as  to  secure  the  greatest  pos- 
sible benefit  to  themselves,  and  several  remarkable  contests  re- 
sulted.'^^  In  the  eighth  district,  composed  of  the  counties  in 
the  southeastern  part  of  the  state,  Thomas  Matthews,  the  prin- 
cipal Federal  candidate,  was  opposed  to  Josiah  Parker.  The 
district  was  normally  Federal,  and  in  the  election  of  members  of 
the  state  convention  Parker  had  been  badly  beaten,'^^  But  in 
the  congressional  election  Matthews  was  handicapped  by  the 
appearance  of  other  Federal  candidates,  and  Parker  managed  to 
squeeze  in.^o  The  sixth  and  ninth  districts,  situated  in  the  south- 
ern part  of  the  State,  the  center  of  Antifederal  strength,  also 
elected  party  exponents,  Isaac  Coles  and  Theodoric  Bland. 

"  See  page  70. 

^"Rives'  Madison,  II.  654. 

O.  G.  Libby,  in  his  Distribution  of  vote  on  the  Federal  Constitution, 
p. 34,  shows  that  the  state  was  divided  politically  into  four  sections.  In  the 
eastern  counties  eighty  per  cent  of  the  vote  had  favored  the  Constitution; 
in  the  middle  district  seventy-four  per  cent  opposed  it;  the  West  Virginia 
section  stood  ninety-seven  per  cent  for,  while  the  Kentucky  district  was 
ninety  per  cent  against. 

™R.  A.  Brock,  History  of  the  Virginia  Federal  Convention  of  17S8,  II. 
376.     2  Vols.,  Richmond,  1891. 

^Before  his  election  Parker  was  a  naval  officer  at  Norfolk,  Virginia. 
He  wrote  to  Governor  Randolph,  February  9,  17S9,  that  he  was  probably 
elected  but  would  not  resign  his  office  yet,  as  a  disputed  election  might 
deprive  him  of  the  honor  of  taking  his  seat  in  Congress.  He  did  send  in 
his  resignation  a  few  days  later,  however.  Calendar  of  Virginia  State 
Papers,  IV.  561,  566,  56S. 


THE    TIL\NSITIONAL    PERIOD,    I788,     1789  61 

The  great  contest  in  Virginia  took  place  in  the  fifth  or  cen- 
tral district,  where  two  future  presidents,  James  Madison  and 
James  Monroe,  were  pitted  against  each  other.  Madison  had 
originally  intended  to  become  a  candidate  for  representative,  but 
at  the  solicitation  of  friends  had  relinquished  this  desire  and  en- 
tered the  senatorial  race.  The  Virginia  legislature,  however, 
was  too  thoroughly  opposed  to  the  new  government  to  allow  itself 
to  be  represented  by  the  state's  chief  exponent  of  the  Consti- 
tution, and  defeated  him.  Thus  he  was  left  free  to  pursue  his 
original  object,  but  the  political  enmity  of  the  assembly  still  fol- 
lowed him.  His  district  was  made  to  consist  of  the  counties  of 
Amherst,  Albemarle,  Louisa,  Culpeper,  Spotsylvania,  Goochland 
and  Fluvanna,  in  addition  to  his  home  county  of  Orange.^^  His 
friends  in  the  assembly  endeavored  to  include  the  Federal  county 
of  Fauquier,  which  both  from  geographical  position  and  habitual 
intercourse  fell  naturally  into  association  with  Orange,  and  to 
exclude  Amherst  and  Goochland,  two  remote  southern  counties 
which  were  strongly  Antifederal,  but  the  effort  was  vain.^^ 
Writing  to  Jefferson  of  Henry's  measures  to  defeat  him  for  the 
Senate,  Madison  said :  "He  has  taken  equal  pains  in  forming  the 
Counties  into  districts  for  the  election  of  Representatives  to  asso- 
ciate with  Orange  such  as  are  most  devoted  to  his  politics,  and 
most  likely  to  be  swayed  by  the  prejudices  excited  against  me.''^^ 
The  provision  in  regard  to  a  candidate's  residency  within  the 
district  seemed  also  to  be  aimed  at  Madison.  Many  of  his  friends, 
believing  the  requirement  unconstitutional,  desired  him  to  ignore 

*'  Of  the  eight  counties  in  the  district,  five  had  given  an  undivided 
vote  in  the  convention  against  the  acceptance  of  the  Constitution,  one  had 
divided  its  vote,  and  two  only,  including  Orange,  had  given  an  undivided 
vote  for  ratification.     Rives'  Madison,  II.  654,  note. 

82  Colonel  Carrington  to  Madison,  November  15,  17S8.  Rives'  Madison, 
II.  654.  Rives  calls  this  the  first  case  in  which  the  device,  later  known  by 
the  name  of  gerrymandering,  was  put  into  operation. 

^  Writings  of  Madison,  V.  313. 


62  UNIVERSITY  OF  MISSOURI  STUDIES 

it  and  to  appear  as  a  candidate  for  an  unquestionably  Federal 
district,  but  he  decided  to  stand  in  his  hornte  territory. 

The  Antifederal  organization  decided  upon  James  Monroe 
as  its  candidate,^*  and  the  situation  was  simplified  by  the  absence 
of  any  others  from  either  party.^^  Both  candidates  spent  the 
month  of  January  electioneering — making  public  addresses,  writ- 
ing letters  to  friends  and  to  the  papers,  and  even  appearing  in 
joint  debate.^*^  The  contest  terminated  with  the  election  of  Mad- 
ison by  a  considerable  majority.  His  home  county  gave  him  a 
practically  unanimous  vote,  Culpeper,  the  critical  county,  over 
seventy  per  cent  of  its  vote,  and  Spotsylvania,  Monroe's  home 
county,  thirty-eight  per  cent.^'^  In  the  other  six  districts  of 
the  state,  the  Federalists  were  also  uniformly  successful,  even 
Kentucky  returning  a  friend  to  the  new  government.*^ 

8<Monroe  to  Jefferson,  February  15,  1789.     Monroe's  Writings,  I.  199. 
^Madison    to    Washington,    January    14,    1789.     Madison's  Writings? 

V.  319- 

^Two  letters  from  Madison  defining  his  position  on  the  question  of 
amendments,  appeared  in  the  Pennsylvania  Packet  of  February  10,  1789. 
Rives,  II.  656  gives  an  account  of  an  open  air  debate  between  the  com- 
petitors on  a  bitter  cold  day,  from  which  Madison  retired  with  a  frost-bitten 
ear. 

^"^  Pennsylvania  Packet,  February  17,  17S9. 

The  writer  has  not  seen  the  returns  from  the  other  counties.  Monroe 
wrote  to  Jefferson  that  Madison's  total  majority  was  about  300.  Both 
candidates  testified  that  their  personal  relations  were  not  affected  by  the 
political  contest.     Monroe's  Writings,   I.  199. 

i^That  is,  the  Federalists  elected  seven  representatives  and  their 
opponents  three.  This  is  the  classification  which  Madison  gave  to  Jef- 
ferson in  a  letter  dated  March  29,  1789.     Madison's  Writings,  V.  334. 

It  is  frequently  difficult  to  determine  the  precise  political  standing  of 
public  men  in  1788-17S9  who  never  became  very  prominent.  The  brevity 
of  the  reports  of  congressional  debates,  the  questions  between  North  and 
South,  and  the  early  formation  of  the  Republican  party,  all  render  at- 
tempts at  classification    confuting.     The  Federalism   of  R.   B.   Lee,   from 


THE    TR,\NSITIONAL    PERIOD,    1 788,    1 789  63 

Delaware,  entitled  to  only  one  representative,  could  not 
be  districted  for  the  election,  even  though  the  tendency  of  the 
state  ^vas  toward  such  a  system.so  The  election  act  had  one 
striking  feature,  evidently  designed  to  prevent  one  county  from 
controlling  the  situation.  Each  qualified  person  was  to  have  two 
votes,  one  of  which  was  to  be  cast  for  a  candidate  not  an  in- 
habitant of  the  county  in  which  the  voter  lived.  The  man  re- 
ceiving the  highest  number  of  votes  was  to  be  declared  elected.'^ 
As  a  "result  of  this  provision,  each  county  gave  a  full  vote  to 
one  of  its  own  number,  and  divided  up  the  vote  which  went  to 
outside  candidates.9i  Whether  this  was  spontaneous,  or  the  result 
of  pre-election  political  activity,  can  not  be  determined  from  the 

the  fourth  Virginia  district,  is  shown  in  letters  written  by  him  to  Leven 
Powell.  The  John  P.  Branch  Historical  Papers  of  Randolph-Macon  Col- 
lege,   I.  219-223.     Richmond,  1901 — . 

The  situation  of  the  several  districts  in  the  state,  with  the  successful 
candidate  in  each,  follows:  First  district,  north-west  part  of  Virginia, 
Alexander  White;  Second,  Kentucky,  John  Brown;  Third,  south-west 
Virginia,  A.  Moore;  Fourth,  north-east  section  of  state,  R.  B.  Lee; 
Fifth  central  and  south  central  section,  James  Madison;  Sixth,  south 
section,  east  of  third  district,  I.  Coles;  Seventh,  north  of  York  River  to 
the  Potomac  River,  John  Page;  Eighth,  south-east  section  includmg  the 
peninsula  east  of  the  Chesapeake  Bay,  J.  Parker;  Ninth,  south  section, 
next  to  the  Sixth,  T.  Bland;  Tenth,  between  the  James  and  York  Rivers, 
Samuel  Griffin. 

«9This  was  shown  in  the  choice  of  electors,  for  which  the  state  was 

divided  into  three  districts. 

90  Session  Laws,  October,  1788. 

••'iThus  the  electors  of  Newcastle  united  on  Gunning  Bedford.  Jr.,  an 
inhabitant  of  that  county.  For  second  choice  they  favored  Allen  McLane 
and  John  Vining,  both  of  Kent  county.  The  voters  of  Kent  united  on 
their  fellow  inhabitant,  John  Vining,  and  for  second  choice  they  divided 
between  Bedford  and  Joshua  Clayton  of  Newcastle  county.  The  returns 
for  those  two  counties  are  given  in  the  Pennsylvania  Packet,  January  15. 
1789.     The  writer  has  not  seen  the  returns  from  Sussex. 


64  UNIVERSITY  OF  MISSOURI  STUDIES 

too  meager  records.  Party  politics,  considered  as  such,  played 
little  part  in  the  election,  for  all  the  principal  candidates  were 
Federal.  The  important  point  for  a  voter  to  ascertain  of  his 
candidate  was  place  of  habitation  rather  than  party  politics.  Kent 
county,  though  not  having  a  much  larger  population  than  New- 
castle or  Sussex,  was  able  to  get  out  a  greater  proportion  of  its 
voters  and  so  elected  its  resident,  John  Vining. 

The  two  other  states  of  the  original  thirteen.  North  Carolina 
and  Rhode  Island,  did  not  ratify  the  Constitution  in  time  to  send 
representatives  to  the  first  session  of  the  first  Congress,  but  North 
Carolina  was  in  part  of  the  second  session  and  both  were  in 
the  third.  The  second  convention  of  the  latter  state  ratified 
the  Constitution  November  21,  1789.  The  assembly  w-hich  met 
immediately  afterwards  passed  an  act  directing  the  manner  of 
electing  representatives,  by  which  the  State  w^as  divided  into  five 
districts  or  "divisions,"  each  formed  by  the  union  of  two  of  the 
ten  superior  court  districts.^-  Each  division  was  entitled  to  elect 
as  its  representative  one  of  its  inhabitants  who  must  have  resided 
within  the  division  for  the  year  just  preceding.  The  election  was 
to  be  held  on  the  first  Thursday  and  Friday  in  the  following 
February  (except  in  the  western  district,  where  it  was  to  be  a 
month  later),  and  was  to  be  conducted  as  were  the  annual  elec- 
tions of  members  of  the  general  assembly.  In  case  of  a  tie  vote, 
the  returning  officers  were  to  decide  the  election,  or  in  the  event 
of  their  failure,  the  decision  was  to  be  made  by  drawing  lots  as 
for  the  grand  jury. 

The  election  was  held  in  accordance  with  this  act,  the  suc- 
cessful candidates  taking  their  seats  in  Congress  in  March  and 
April.  The  divisions  of  the  state  with  their  successful  candi- 
dates follow :  the  first  or  Roanoke  division,  formed  by  the  su- 
perior court  districts  of  Hillsborough  and  Halifax,  returned  J. 
B.  Ashe,  probably  a  Federalist;  the  second  or  Edenton  division, 
formed  by  the  districts  of  Edenton  and  Newbern,  Hugh  Wil- 

92  Laws  of  North  Carolina,  December  22,  17S9. 


THE    TRANSITIONAL    PERIOD,    1/88,     1 789  65 

liamson,  a  strong  Federalist;  the  third  or  Cape  Fear  division, 
formed  by  the  districts  of  Wilmington  and  Fayetteville,  Timothy 
Bloodworth,  a  strong  Antifederalist ;  the  fourth  or  Yadkin  di- 
vision, formed  by  the  districts  of  Salisbury  and  Morgan,  John 
Steele,  a  Federalist;  the  fifth  or  western  division,  formed  by  the 
districts  of  Washington  and  Mero  (the  Tennessee  country),  John 
Sevier,  ex-governor  of  the  state  of  Franklin. 

Rhode  Island  ratified  the  Constitution  May  29,  1790.  At  the 
session  of  the  general  assembly  held  immediately  afterward  an 
act  was  passed  providing  for  the  choice  of  the  single  Rhode 
Island  representative  by  the  freemen  assembled  in  town  meetings 
on  the  last  Tuesday  of  the  following  August.^^  j^  case  no  per- 
son received  a  majority,  a  second  election  was  provided,  the  can- 
didates at  which  were  limited  to  those  persons  standing  highest 
in  the  first  election,  the  whole  number  of  whose  votes  made  a 
majority  of  all  the  votes  cast.  If  no  one  secured  a  majority  of  all 
the  votes  cast  at  the  second  election,  a  third  was  planned  to 
try  the  strength  of  the  two  most  popular  candidates  at  the  second. 
A  rather  bitter  contest  ensued,  the  two  principal  candidates  being 
Job  Comstock  and  Benjamin  Bourne.^^  Comstock  was  advocated 
chiefly  because  he  was  opposed  to  the  slave  trade.  A  second 
reason  for  selecting  him  was  that  he  was  a  Friend  and  it  was 
urged  that  some  one  of  that  faith  should  hold  office.  The  per- 
son elected  was  to  serve  only  until  the  following  March, 
and  Comstock's  friends  demanded  that  his  abilities  be  given  a 
trial  for  that  length  of  time.^^  fhe  chief  argument  in  Bourne's 
favor  was  that  he  was  a  successful  lawyer.  The  vote  in  Prov- 
idence gave  Bourne  a  majority  of  two  hundred  and  eighty,  and 

*•"  Rhode  Island,  Session  Laws,  June,  1790. 

'♦Of  the  two  important  newspapers  in  Providence  the  Gazette  and 
Country  Journal  apparently  favored  Bourne,  and  the  United  States 
Chronicle,  Comstock.  Bourne  had  worked  and  voted  for  the  adoption  of 
the  Constitution,  while  Comstock  had  voted  against  it  in  the  state  con- 
vention.    Staples,  Rhode  Island  in  the  Continental  Congress,  pp.  672-673. 

9^  United  States  Chronicle,  August  26,  1790. 

5 


66  UNIVERSITY  OF  MISSOURI  STUDIES 

though  outside  of  that  city  he  did  not  run  so  well,  he  was  elected 
with  a  total  majority  of  two  hundred  and  thirty-nine.^^ 

Reviewing  the  provisions  made  by  the  thirteen  states  for  this 
first  election  of  representatives,  the  lack  of  uniformity  is  at  once 
apparent.  A  rough  division  of  five  groups  may  be  made.  Four 
states,  Pennsylvania,  New  Jersey,  New  Hampshire  and  Con- 
necticut, adopted  the  general  ticket  system,  but  in  nearly  all  other 
particulars  their  laws  were  different.  Georgia  and  Maryland, 
while  allowing  the  entire  voting  population  to  vote  for  the  full 
congressional  quota,  required  one  representative  to  be  chosen  from 
each  district.  New  York  and  South  Carolina  required  just  the 
reverse — the  voters  in  each  district  choosing  only  one  represen- 
tative, who,  however,  might  come  from  the  state  at  large.  Mas- 
sachusetts, Virginia,  and  North  Carolina,  the  fourth  group 
adopted  the  district  system,  their  laws  varying  in  other  respects. 
Delaware  and  Rhode  Island,  with  their  single  representative,  were 
untroubled  by  questions  which  disturbed  other  states,  but  enacted 
systems  which  had  peculiarities  of  their  own. 

New  Hampshire  and  Massachusetts  required  majorities  to 
elect,  while  the  other  states  only  asked  for  pluralities.  The  time 
of  elections  varied  in  eleven  different  states  from  November 
24,  1788,  when  South  Carolina  cast  its  ballot,  to  March  10,  1789, 
when  New  Jersey  finished  the  election.^"  Only  two  states,  Del- 
aware and  Maryland,  elected  on  the  same  day  and  that  was  de- 
termined by  the  time  for  choosing  presidential  electors. 

®^ Providence  Journal,  August  28,  1790.  The  detailed  vote  is  not 
extant. 

^The  time  of  election  of  representatives  in  the  different  states  was  as 
follows: 

South  Carolina,  November  24-25,  1788. 

Pennsylvania,  November  26,  1788. 

New  Hampshire,  December  15,  1788. 

Massachusetts,  December  i8,  17S8. 

Connecticut,  December  22,  1788. 

Delaware  and  Maryland,  January  7,  1789. 

Virginia,  February  2,  1789. 

Georgia,  February  9,  1789. 

New  Jersey,  February  11 — March  10,  1789. 

New  York,  March  3,  17S9. 


CHAPTER  IV 


PRESIDENTIAL  ELECTORS 


The  Constitution  was  clear  enough  in  saying  that  United 
States  Senators  should  be  chosen  by  the  respective  state  legis- 
latures, and  that  representatives  should  be  chosen  by  the  people. 
But  a  new  and  important  question  had  reference  to  presidential 
electors.  Should  they  be  appointed  by  the  legislature  or  elected 
by  the  general  body  of  voters?  If  by  the  former,  should  it  be  by 
joint  or  concurrent  ballot — a  question  also  involved  in  the  choice 
of  senators.  If  by  the  latter,  should  it  be  by  the  district  or  by  the 
general  ticket  system — an  important  question  in  the  election  of 
representatives.  Congress  had  gone  to  its  constitutional  limit 
in  fixing  the  time  for  the  choice  of  electors,  and  the  time  for 
them  to  cast  their  votes. 

A  newspaper  correspondent  at  Philadelphia,  October  i,  1788, 
maintained  that  Congress  had  construed  the  Constitution  to  mean 
that  the  legislatures  should  make  the  appointment.  "For  if 
the  people,  as  hath  been  asserted,  are  to  choose  the  electors,  is 
it  possible  that  in  the  large  states  of  Massachusetts,  Virginia,  etc., 
the  returns  can  be  made  for  the  choice,  notice  given  to  the  persons 
chosen,  and  the  persons  thus  chosen  have  time  to  meet  together 
in  the  short  space  of  one  month?  No,  it  is  impossible,  and  can 
only  be  remedied  by  the  legislatures,  who,  in  fact,  are  'the 
States'  making  the  choice."^  This  view  was  not  shared  uniformly 
throughout  the  Union,  however,  for  the  ten  states  which  took 
part  in  the  first  presidential  election  were  nearly  evenly  divided 
in  actual  practice.  The  two  secondary  questions,  relating  to  a 
concurrent  or  joint  ballot  and  to  a  general  ticket  or  district  sys- 

'  Edward  Stanwood,  A  history  of  the  presidency,  p.  21.  New  York, 
1904. 

(67) 


68  UNIVERSITY  OF  MISSOURI  STUDIES 

tern,  were  the  excuse  for  elaborate  constitutional  debates  in  the 
various  state  assemblies,  but  were  really  decided  by  such  other 
considerations  as  state  politics,  election  habits  or  compromises 
over  the  relative  importance  of  the  upper  and  lower  houses  of 
assembly.  These  two  questions  will  be  further  discussed  in 
connection  with  state  cases  coming  under  them. 

The  first  state  to  enact  the  necessary  laws  was  Pennsvlvania. 
The  twelfth  general  assembly  of  that  state  met  in  its  third  ses- 
sion Sepember  2,  1788.  On  September  17  the  action  of  Con- 
gress of  the  thirteenth  was  officially  received,  and  the  following 
day  it  was  referred  to  a  special  committee  with  instructions  to 
draft  a  bill  if  necessary.-'  On  the  twenty-third  a  bill  was  reported 
providing  for  the  election  of  both  United  States  representatives 
and  presidential  electors  on  tlie  first  Wednesday  in  January, 
1789.  One  section  of  this  bill  specified  that  every  qualified  voter 
was  to  write  the  names  of  ten  persons  to  serve  as  electors,  upon 
a  slip  of  paper.  The  ten  receiving  the  highest  number  of  votes 
were  to  assemble  at  Reading  on  the  first  Wednesday  in  Feb- 
ruary and  cast  their  ballots  for  president  and  vice-president. 
When  the  bill  came  up  for  discussion  the  following  day,  atten- 
tion was  confined  almost  exclusively  to  the  provisions  in  regard 
to  representatives.^  It  seemed  to  be  taken  for  granted  that  the 
choice  of  electors  lay  with  the  people.  One  speaker,  indeed,  de- 
clared that  while  the  Constitution  left  the  appointment  of  elec- 
tors to  the  legislature  or  to  the  people,  according  as  the  former 
directed,  yet  in  such  a  case  the  legislature  ought  not,  in  delicacy, 
to  decide  in  its  own  favor.  On  the  question  of  district  versus 
general  ticket  elections,  a  long  debate  took  place.  But  when  the 
decision  to  elect  representatives  rested  with  the  advocates  of  the 
general  ticket  system  it  was  taken  for  granted  that  the  choice 
of  electors  should  be  by  the  same  plan.  The  editor  of  the  Penn- 
sylvania Packet  wrote  that  when  it  was  once  decided  to  allow 

-Minutes  of  the  Assembly  of  Pennsvlvania. 
^  Lloyd's  Debates. 


THE    TR.\NSIT10NAL    PERIOD,    I788,    I789  69 

the  people  at  large  to  choose  electors,  a  new  argument  was  fur- 
nished for  the  general  ticket  system.  "For  were  we  to  go  into 
district  elections  we  must  have  ten  districts  for  electors  of  pres- 
idents, and  eight  for  the  Federal  representatives,  which  wiould 
oblige  us  to  hold  the  elections  on  different  days,  at  the  expense 
of  double  cost  and  time,  and  with  a  repetition  of  the  confusion 
that  attends  an  election.''-*  As  a  matter  of  fact,  however,  just 
before  the  passage  of  the  bill  on  September  29,  it  was  decided  to 
hold  the  elections  on  separate  days;  for  representatives  on  the 
fourth  Wednesday  in  November,  for  electors  on  the  first  Wed- 
nesday in  January.    The  bill  was  finally  enacted  October  4. 

A  method  similar  to  the  one  just  described  in  that  the 
choice  was  left  to  the  people,  but  different  in  that  the  district 
system  prevailed,  was  followed  in  Delaware.  That  diminutive 
state  had  no  excuse  for  the  appointment  of  electors  by  the  leg- 
islature, especially  since  that  body  had  met  in  October,  leaving 
ample  time  to  make  arrangements  for  a  popular  election.  It  was 
entitled  to  appoint  three  electors.  Being  already  practically  di- 
vided into  three  districts  (as  the  state  consisted  of  three  coun- 
ties) it  was  naturally  suggested  that  each  be  allowed  one  elector. 
It  was  therefore  enacted  that  an  elector  be  chosen  by  the  qual- 
ified voters  of  each  county,  such  person  to  be  an  inhabitant  of 
the  county  from  which  he  was  chosen.^ 

Maryland,  although  providing  for  popular  choice  of  electors, 
differed  in  the  details  of  her  arrangements  from  both  Penn- 
sylvania and  Delaware.  Section  VI  of  her  act  for  carrying  the 
government  into  operation  provided  ^'  that  every  qualified  person 

*  Pennsylvania  Packet,  September  27,  17S8. 
5  Session  Laws  of  Delaware,  October,   17S8. 

*  "An  Act  directing  the  time,  places  and  manner  of  holding  elec- 
tions" etc.     Session  Laws,  December  22,  17SS. 

Stanwood  (on  page  22)  and  Dougherty  (page  282)  are  both  mistaken 
in  saving  that  the  Delaware  legislature  chose  the  first  electors  in 
Delaware. 


70  UNIVERSITY  OF  MISSOURI  STUDIES 

vote  for  eight  electors,  five  from  the  western  and  three  from 
the  eastern  shore.  The  five  on  the  western  shore  and  the  three 
on  the  eastern  having  the  greatest  number  of  votes  were  to  be 
declared  elected.  This  was  nothing  less  than  dividing  the  state 
into  two  great  districts  and  prescribing  the  number  of  electors 
from  each,  but  allowing  the  whole  body  of  voters  to  cast  their 
ballots  for  the  full  number. 

Of  all  the  ten  states,  Virginia,  it  would  seem,  had  the  most 
reason  for  appointing  electors  by  the  legislature.  The  majority 
in  that  body  was  Antifederal  and  could  have  chosen  men  of  its 
own  political  views,  whereas  a  popular  election  might  result  oth- 
erwise, for  it  was  well  known  that  the  state  was  much  more 
Federal  than  the  legislature."  And  should  the  popular  election 
be  held  by  the  district  system,  several  if  not  a  majority  of  Fed- 
eral electors  were  sure  to  be  returned.  Again,  if  the  counties 
lying  far  beyond  the  mountains  had  to  hold  their  elections  on  the 
first  Wednesday  in  January  and  send  the  returns  to  Richmond, 
how  could  electors  of  these  frontier  districts  receive  official  noti- 
fication in  time  to  meet  the  other  electors  at  some  eastern  point 
by  the  first  Wednesday  in  February?  In  the  face  of  these  prac- 
tical as  well  as  political  arguments,  however,  the  choice  of  electors 
was  left  to  the  people,^  and  more  than  that,  a  complete  district 
system  was  put  into  operation.  As  the  state  was  entitled  to 
twelve  electors,  it  was  therefore  divided  into  that  many  districts.^ 
Persons  who  were  qualified  to  vote  for  assemblymen  wiere  al- 
lowed the  suffrage  at  this  election.     The  elector  was  to  be  "a 

'  Maryland  Journal,  December  12,  17S8. 

8  Probably  one  reason  why  the  election  was  referred  to  the  people  was 
because  the  legislature  would  not  have  been  in  regular  session  on  January  7. 

9  Each  of  these  districts  was  composed  of  two  senatorial  districts. 
"This  mode,  although  unequal  and  unjust,  was  adopted  on  account  of  the 
shortness  of  time  for  promulgating  the  law,"  Maryland  Journal,  No- 
vember 28,  17S8. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  71 

discreet  and  proper  person,  being  a  free-holder  and  boiia  fide 
resident  in  such  district  for  twelve  months." ^<* 

The  provisions  for  the  appointment  of  electors  thus  far  de- 
scribed left  the  choice  simply  and  solely  to  the  people.  The 
alternative,  or  what  was  generally  considered  as  such,  was  for 
the  legislature  to  make  the  appointment.  But  two  states.  New 
Hampshire  and  Massachusetts,  put  into  operation  an  intermediate 
system  by  which  the  legislature  shared  the  privilege  of  appoint- 
ment with  the  people.  The  general  court  of  New  Hampshire,  by 
an  act  of  November  12,  1788,  provided  for  the  election  of  both 
representatives  and  electors  on  the  third  Monday  in  December. 
The  persons  qualified  to  vote  for  the  former,  were  to  bring  in 
also  their  ballots  for  five  electors,  the  full  number  to  which  the 
state  was  entitled.  Electors  were  to  be  inhabitants  of  the  state 
who  w^ere  not  continental  senators,  representatives  or  persons 
holding  offices  of  trust  or  profit  under  the  United  States.  The 
votes  were  to  be  returned  to  the  general  court  which  was  to 
be  in  session  at  the  beginning  of  January,  and  the  persons  having 
a  majority  were  on  the  first  Wednesday  in  January  to  be  duly 
declared  elected.  In  case  five  persons  or  less  should  not  be  chosen 
by  a  majority,  then  the  general  court  was  to  choose  from  double 
that  number  of  candidates  having  the  highest  number  of  votes, 
as  many  as  might  be  lacking.^ ^   Had  the  election  resulted  in  five 

'•"'An  act  for  the  appointment  of  electors  to  choose  a  President, 
pursuant  to  the  constitution  of  government  for  the  United  States,"  passed 
November  17,  178S.     Hening,  XII.  648. 

''Each  elector  chosen  pursuant  to  this  act,  and  failing  to  attend  and 
vote  for  a  president  at  the  time  and  place  herein  directed,  and  moreover 
to  send  and  certify  the  same  in  manner  directed  by  the  constitution  of 
government,  shall,  except  in  cases  of  sickness  or  any  other  unavoidable 
accidents,  forfeit  and  pay  two  hundred  pounds,  to  be  recovered  by  the 
solicitor  general,  to  the  use  of  the  commonwealth,  by  action  of  debt,  bill, 
plaint  or  information,  in  any  court  of  record."      Hening,  XII.  651. 

"  "And  in  case  it  shall  so  happen,  that  the  whole,  or  any  part  of  the 
number  of  electors,  are  not  chosen  by  the  people,  then  the  general  court 
shall  take  a  number  of  names  out  of  the  candidates  who  have  the  highest 
number  of  votes,  equal  to  double  the  number  of  electors  wanting,  from 
which  the  senate  and  house  shall,  ;«  sr/c/i  -way  a>i(i  maufter  as  may  be  by 
them  agreed  on,  proceed  to  appoint  the  electors  wanting." 


"22  UNIVERSITY   OF    MISSOURI    STUDIES 

persons  receiving  a  majority,  the  legislature  obviously  would 
have  had  nothing  to  do  but  canvass  the  returns  and  declare  the 
result — barely  enough  to  meet  the  requirement  that  the  appoint- 
ment be  made  on  the  first  Wednesday  in  January.  But,  as  will 
be  seen,  no  elector  received  a  majority  and  it  became  the  duty 
of  the  general  court  to  choose  the  full  list. 

In  Massachusetts  the  subject  of  electors  was  closely  con- 
nected with  that  of  representatives.  For  the  election  of  the  latter 
the  state  was  divided  into  eight  districts,  each  to  choose  one  rep- 
resentative on  December  i8,  1788.^-  On  the  same  day  each  dis- 
trict was  to  choose  also  two  persons,  inhabitants  of  the  district, 
to  be  candidates  for  electors.  From  the  two  persons  receiving 
the  highest  number  of  votes  in  each  district,  the  general  court  in 
joint  session  on  the  first  Wednesday  in  January,  was  to  appoint 
one.  In  addition  to  the  eight  thus  chosen,  the  general  court 
was  to  appoint  two  electors  at  large. 

Thus  Massachusetts  put  into  operation  a  district  system 
while  New  Hampshire  had  a  general  ticket  system.  Further,  it 
was  not  meant  in  Massachusetts  that  the  system  should  be  any- 
thing more  nor  less  than  a  nomination  by  the  voters,  while  the 
system  in  New  Hampshire  provided  an  actual  election,  subject 
to  the  condition  that  the  persons  so  elected  secure  a  majority. 
Finally,  definite  provision  was  made  in  Massachusetts  that  the 
action  of  the  general  court  on  the  first  Wednesday  in  January 
should  be  in  joint  session  of  the  two  houses,  while  the  New 
Hampshire  law  made  no  provision  on  this  point — an  omission 
productive  of  trouble  later. ^^ 

^- Resolve  for  organizing  the  federal  government,  November  20,  17SS. 

'3  According  to  the  N.  H.  constitution  of  1784,  the  delegates  to  Con- 
gress were  to  be  elected  by  the  senate  and  house  "in  their  separate 
branches."  The  president  of  the  state  was  elected  by  popular  vote,  but  if 
no  person  received  a  majority,  the  house  was  to  elect  two  persons,  out  of 
the  four  highest,  and  the  senate  one  from  these  two.  The  council  (two 
members  from  the  senate  and  three  from  the  house),  as  well  as  the  secre- 
tary, treasurer  and  commissary  general,  was  to  be  chosen  annually  bv  joint 
ballot. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789 


73 


In  three  of  the  remaining  four  states,  the  appointment  of 
electors  was  made  by  the  legislature.  Two,  Georgia  and  Con- 
necticut made  no  previous  provisions  by  law  for  the  appomt- 
ment  but  South  Carolina,  in  the  same  act  prescribing  the  manner 
of  choosing  representatives-  provided  that  electors  should  be 
chosen  bv  the  legislature  on  the  first  Wednesday  m  January. 
In  the  fourth  state,  New  Jersey,  it  was  arranged  ^^  that  the 
governor  and  council  meet  at  Princeton  on  the  required  day 
and  choose  six  persons  to  be  electors,  ''being  freeholders  and 
residents  in  the  State."i« 

New  York  had  ratified  the  Constitution,  but  owing  to  a 
deadiock  between  the  upper  and  lower  houses  did  not  provide  for 
the  appointment  of  electors  and  so  had  nothing  to  do  with  Wash- 
ingto^s  first  election.  The  legislature  of  that  state  met  ordi- 
narilv  in  January,  but  the  importance  of  giving  prompt  atten- 
tion'to  the  necessary  arrangements  for  starting  the  new  govern- 
ment caused  it  to  be  convened  early  in  December,  1788.  The 
senate  in  its  address  to  the  governor  declared  that  the  appoint- 
ment  of  electors  was  a  matter  of  such  magnitude  that  if  suffi- 
cient time  had  intervened  for  a  general  election,  it  would  rather 

"Passed  November  4,  17S8. 

15  An    Act   for  carrying    into    effect   the    Constitution    of  the  United 
States,  November  21,  178S. 

'estanwood,  in  his  History  of  the  Presidency,  page  22,  says  that  for 
this  first  election,  the  governors  of  five  states,  Connecticut,  New  Jersey, 
Delaware,  South  Carolina  and  Georgia,  did  not  summon  the  legislature  m 
time  to  provide  for  an  election  by  the  people.  He  is  mistaken,  however,  for 
Delaware  did  hold  a  popular  election  for  electors,  while  the  legislatures  of 
Connecticut.  New  Jersey  and  South  Carolina  were  holding  sessions  in 
October  and  November  of  1788  and  could  have  provided  for  popular  elec- 
tions as  well  as  Virginia  and  the  other  states. 

Dougherty,  in  his  Electoral  system  of  the  Uniied  States,  page  282, 
falls  into  the  same  error.  Stanwood's  statement  might  possibly  apply  to 
Georgia,  but  certainly  not  to  the  other  states. 


74  UNIVERSITY  OF  MISSOURI  STUDIES 

have  referred  the  choice  to  the  suffrage  of  the  people.  To  which 
the  governor  answered :  ''I  regret  that  the  legislature  could 
not  have  been  convened  at  so  early  a  period  as  to  have  afforded 
time  to  have  made  and  carried  into  effect  the  arrangements  neces- 
sary for  appointing  electors  in  the  manner  which,  it  seems,  you 
would  have  preferred.  But,  since  this  was  impracticable,  you 
will,  I  am  persuaded,  perceive  the  propriety  of  pursuing  your 
principle,  as  far  as  circumstances  will  permit,  and  of  adopting  such 
mode  of  appointment  as  shall  appear  most  nearly  to  app^roach  an 
election  by  the  people."^'  It  was  thus  understood  at  once  that 
the  choice  was  not  to  be  referred  to  the  people.  By  the  last  sen- 
tence of  his  message  Governor  Clinton  apparently  meant  that 
the  house  of  assembly,  as  it  stood  nearer  to  the  people,  should 
have  more  influence  in  appointing  electors  than  the  senate.  This 
brought  into  prominence  the  respective  politics  of  the  two  houses. 
A  large  Antifederal  majority  (Governor  Clinton's  party)  con- 
trolled the  assembly;  the  senate  had  a  small  Federal  majority.  If 
the  appointment  were  made  by  joint  ballot,  eight  Antifederal 
electors  would  be  chosen,  if  by  concurrent  vote,  probably  four 
Federalists  and  four  Antifederalists.^^  This  was  the  situation 
which  produced  a  struggle  attracting  attention  throughout  the 
Union. 

The  senate  took  first  action  by  passing  a  bill  on  December 
i8,  which  provided  that  each  house  choose  four  electors. ^^  On 
the  twenty-second  the  assembly  rejected  the  senate  bill  without 
debate,  but  passed  instead  a  sort  of  omnibus  bill  of  its  own,  pro- 
viding for  the  choice  not  only  of  electors,  but  also  of  senators 
and  representatives.  Senators  and  electors  were  to  be  chosen  as 
were  the   New  York  members  of  the  Continental   Congress,^^ 

"Massachusetts  Centinel,  January  14,  1789. 

18  Dougherty,  in  his  Electoral  system  of  the  United  States,    page  20.  is 
mistaken  in  saying  that  New  York  was  entitled  to  ten  electors. 
'"Pennsylvania  Packet,  December  25,  1788,  et  seq. 
2"  Section  30  of  the  state  constitution. 


THE    TR.\NSITIONAL    PERIOD,    1 788,    1 789  75 

— each  house  was  to  nominate  separately  the  number  of  persons 
needed,  and  if,  on  comparing  the  lists,  the  same  men  were  named 
by  both  houses,  they  were  to  be  declared  elected.  In  case  no 
electors  were  thus  concurrently  named,  the  election  was  to  pro- 
ceed by  joint  ballot,  the  office  going  to  the  persons  receiving  the 
highest  number  of  votes.  The  senate  passed  this  bill,  but 
amended  it  so  as  to  secure  the  appointment  of  senators  and 
electors  by  concurrent  rather  than  joint  vote.  The  assembly  dis- 
agreed with  the  amendments,  and  on  January  5,  1789,  in  ac- 
cordance with  provisions  governing  such  cases,  the  two  houses 
met  in  "conference''  to  discuss  the  senate  amendment.-^  But 
neither  house  would  recede  from  its  position  and  the  bill  was 
lost. 

Several  days  later  another  bill  was  introduced  into  the  lower 
house  and  passed  that  body  January  2^,  twenty  days  after  the 
choice  of  electors  should  have  been  made,  according  to  the  re- 
solves of  Congress.  It  seemed  that  the  assembly  majority  still 
hoped  the  state  would  take  part  in  the  first  election.22  The  mode 
of  appointment  provided  in  the  new  bill  was  exactly  similar  to 
that  which  had  been  rejected  after  the  conference  of  January 
5,  and  the  fate  of  the  bill  was  the  same.  It  was  amended  by 
the  senate,  a  conference  was  held,  neither  side  would  recede, 
and  the  bill  was  lost. 

On  February  4,  the  day  fixed  by  Congress  as  the  time  for 
electors  to  meet  and  vote,  Mr.  B.  Livingston,  in  the  assembly, 
moved  that  electors  be  chosen  by  concurrent  resolution.     The 

-' See  the  chapter  on  the  election  of  senators  where  these  arguments 
are  given  in  detail. 

22 Alexander  Hamilton  to  Sedg^vick,  January  29,  17S9.  Hamilton's 
Works,  IX.  456.  Speaking  of  the  day  for  the  appointment  of  electors 
having  gone  by  with  no  action  on  the  part  of  the  assembly,  he  said:  "I 
am  not  sorry,  as  the  most  we  could  hope  would  be  to  balance  accounts  and 
do  no  harm.  The  antifederalists  incline  to  an  appointment  notwith- 
standing, but  I  discourage  it  with  the  federalists." 


7(i  UNIVERSITY  OF  MISSOURI  STUDIES 

joint  ballot  plan  was  promptly  substituted  by  the  usual  majority, 
and  the  whole  resolution  as  promptly  rejected  by  the  senate. 
The  upper  house  then  sent  to  the  lower  the  proposition  that  each 
body  choose  four  persons  to  serve  as  electors,  but  it  met  with 
the  usual  rejection.  As  a  last  effort,  Mr.  Watts,  in  the  assembly, 
introduced  a  resolution  that  a  committee  to  consist  of  five  mem- 
bers from  each  house,  be  appointed  to  select  eight  proper  per- 
sons to  be  approved  as  electors  by  the  two  houses.  This  last 
proposition  was  lost  by  a  strict  party  vote.23  If  any  one  of  the 
attempts  which  were  made  after  January  7  to  appoint  electors  in 
New  York  had  been  successful,  it  would  surely  not  have  been 
regarded  as  legal.  Just  what  action  Congress  would  have  taken 
when  the  electoral  vote  came  to  be  counted  under  these  circum- 
stances it  would  be  interesting  to  know.  But  at  that  particular 
crisis,  it  was  probably  fortunate  that  it  did  not  become  necessary 
to  throw  out  the  whole  electoral  vote  of  a  large  state. 

Turning  from  this  diversity  of  legislation  to  the  political 
conditions  preceding  the  actual  election  of  January  7,  1789,  a 
rather  chaotic  situation  discloses  itself.  Politics  as  well  as  gov- 
ernment was  in  a  transitional  stage.  The  struggle  of  the  past 
year  over  the  adoption  of  the  Constitution  had  drawn  a  sharp 
line  between  its  supporters  and  opponents,  but  with  the  victory 
of  the  former  new  questions  were  coming  up  to  cause  a  different 
political  alignment.  For  the  ensuing  year,  three  parties  were 
rather  vaguely  outlined,  namely,  the  supporters  of  the  Consti- 
tution as  it  stood,  the  advocates  of  a  new  convention  to  amend 
or  recast  the  Constitution,  and  the  advocates  of  amendments  to 
be  proposed  by  Congress.  The  last  party,  indeed,  was  a  com- 
promise party  made  up  in  part  of  former  opponents  to  the  Con- 
stitution, such  as  Edmund  Randolph,  and  in  part  of  former 
supporters  forced  into  an  advanced  position  to  carry  the  election, 
as  was  the  case  of  Madison.  It  was  the  program  of  the  radical 
party  to  secure  control  of  the  government  in  the  fall  and  winter 

28 Pennsylvania  Packet,  February  i6,  17S9. 


THE    TR.\NSITIONAL    PERIOD,     I788,    I789  JJ 

elections  and  to  force  Congress  into  calling  a  new  convention. 
It  was  even  rumored  that,  contrary  to  the  generally  expressed 
desire  of  making  Washington  president,  the  Antifederalists  of  the 
three  large  states  of  New  York,  Pennsylvania  and  Virginia  would 
support  Patrick  Henry  for  chief  executive  and  Governor  Clin- 
ton for  vice-president.  Such  reports  called  forth  warm  expostu- 
lations 2-i  and  brought  on  sharp  party  conflicts  at  various  places. 

The  actual  result  of  the  election  showed  that  the  danger 
was  not  so  great  as  the  Federalists  had  feared.  New  York,  a 
stronghold  of  the  opposition,  as  we  have  seen,  because  of  the 
quarrel  in  the  legislature  took  no  part  in  the  presidential  elec- 
tion. Of  the  ratifying  states,  Virginia  would  probably  have  ap- 
pointed the  electors  most  to  be  feared  by  the  friends  of  the  new 
government  had  the  appointment  been  made  by  the  legislature. 
But  with  the  choice  by  popular  election,  the  Federalists  had 
more  than  an  even  chance,  and  after  an  active  canvass  elected 
nine  of  the  twelve  electors,  Patrick  Henry  being  one  of  the  three 
successful  Antifederalists.  According  to  Madison,  the  sole  object 
of  the  election,  in  the  eyes  of  the  mass  of  the  people,  was  the 
choice  of  a  president,  little  attention  being  paid  to  the  second 
office.-'"'  Thus  in  Amherst  county,  Colonel  Cabell,  the  Anti- 
federalist  candidate,  received  a  unanimous  vote  simply  because 
he  had  made  a  previous  declaration  which  satisfied  the  Federal 
party  as  to  the  disposition  of  his  vote  for  president.  That  the 
district  of  which  Amherst  was  a  part  gave  a  small  majority  to 
General  Stevens,  the  Federal  candidate,  was  due  solely  to  a  sim- 
ilar coalition  in  another  county.-*^ 

In  Pennsylvania,  where  the  general  ticket  system  had  been 
adopted,  two  complete  electoral  tickets  were  put  forth,  one  by 
the  Federal  convention  at  Lancaster,  November  3,  and  the  other 

2*  New  Jersey  Journal,  January  14,  17S9. 

^Madison  to  Washington,  January   14,    1789.     Writings   of   Madison 
V.  318. 

2«Ibid. 


78  UNIVERSITY  OF  MISSOURI  STUDIES 

as  a  result  probably  of  the  Antifederal  convention  in  Harrisburg 
September  3.2^  The  election  of  representative^  came  several 
weeks  earlier  than  that  for  electors,  unfortunately  for  the  latter, 
for  one  result  was  a  perceptible  decrease  in  interest  and  a  consid- 
erably smaller  vote.  From  Fayette  county,  for  instance,  came  the 
disheartening  news,  "no  election  has  been  held  in  this  county 
for  the  election  of  electors.  The  number  of  persons  who  attended 
on  that  day  was  not  sufficient  to  have  filled  the  necessary  offices  of 
such  an  election.''^^  A  writer  in  the  Pennsylvania  Packet  ^^  com- 
plained bitterly  of  the  laxity  of  the  returning  officers,  and  asked 
if  Pennsylvania,  like  New  York,  was  to  look  on  as  a  silent  spec- 
tator, and  be  made  the  scoff  of  the  Union  because  a  few  Anti- 
federal  county  officers  trampled  with  impunity  upon  the  laws. 
The  Supreme  Executive  Council  had  taken  steps  to  prevent  such 
a  defeat  of  the  law  by  employing  two  express  riders  to  bring  the 
returns  from  the  ten  counties  situated  furthest  away.^*'  Even 
then  it  was  not  until  Tuesday,  February  3,  that  the  returns  from 
the  several  counties  were  inspected  by  the  Council,  and  the  names 
of  the  ten  successful  persons  were  proclaimed.^^  These  men 
had  all  been  elected  from  the  Federal  ticket.32 

In   Maryland   the   election   of   representatives    and   electors 
came  on  the  same  day,  with  the  chief  interest  centering  in  the 

27  For  a  description  of  these  conventions,  see  J.  S.  Walton,  Nominating 
conventions  in  Pennsylvania,  American  Historical  Review,  II.  262  et  seq. 

^Pennsylvania  Archives,  XI.  535. 

''S  February  2,  1789. 

^  Colonial  Records,  XV.  633,  634,  637.    Pennsylvania  Archives,  XI.  430. 

31  Colonial  Records,  XV.  655. 

^Pennsylvania  Packet,  January,  1789.  For  the  election  of  January  7, 
only  the  vote  cast  for  the  Federal  candidates  was  seen  by  the  writer,  but 
this  was  much  smaller  than  the  corresponding  Federal  vote  for  representa- 
tives in  the  previous  November.  It  is  probable  that  the  Antifederalists 
were  discouraged  by  the  result  of  the  first  election,  and  cast  even  a  com- 
paratively smaller  vote  than  the  Federalists  at  the  election  of  January  7. 


THE    TR.\NSITIONAL    PERIOD,    I788,    I789  79 

former.  Both  parties  had  put  forth  complete  electoral  tickets. 
That  of  the  Federalists  was  formed  in  the  latter  part  of  December 
by  a  legislative  caucus  j^^  that  of  their  opponents  was  announced 
as  the  work  of  a  number  of  gentlemen,  "zealous  guardians  of 
the  rights  of  the  people."^'*  Two  of  the  Federal  candidates  were 
included  in  the  Antifederal  ticket,  placed  there,  the  Federalists 
charged,  "in  the  hope  that  their  deserved  popularity  in  their 
several  counties,  would  draw  to  them  the  votes  which  would 
otherwise  be  given  to  members  of  the  federal  ticket,  by  which 
means  they  expect  to  divide  the  federal  interest  and  thereby  in- 
crease the  chances  in  favor  of  the  antifederalists."^^  The  re- 
turns from  the  election  came  in  rapidly  and  showed  that  the 
entire  Federal  ticket  was  elected  by  majorities  ranging  from  two 
thousand  to  five  thousand.^^ 

From  the  little  available  material  on  the  political  conditions 
in  Delaware  it  seems  that  both  campaign  and  election  passed  off 
very  quietly,  with  little  or  no  contest.  Indeed,  in  Kent  county, 
John  Banning  was  chosen  elector  by  a  unanimous  vote,  and  in 
Newcastle,  the  vote  for  G.  Bedford  was  practically  so.^'^ 

Turning  to  Massachusetts,  with  its  system  of  district  nomi- 
nation by  popular  vote,  one  finds  no  evidence  of  any  active  can- 
vass in  behalf  of  electoral  candidates.  As  in  Maryland,  the  elec- 
tion of  representatives  was  absorbing  all  the  attention.  More- 
over, there  was  no  extra-legal  machinery  by  which  the  number 
of  candidates  could  be  reduced,  and  this  made  the  striking  feature 
of  the  election,  as  compared  with  the  middle  states,  the  large  num- 
ber of  persons  who  received  votes.    This  is  well  illustrated  by  a 

'3  See  page  47. 

3<  Maryland  Journal,  December  26,  17S8. 
35Mar>']and  Journal,  December  30,  1788. 
*Ibid.,  January  23,  1789. 
'^Pennsylvania  Packet,  January  15,  1789. 

The  writer  was  unable    to    discover   anj    complete    files  of  Delaware 
newspapers  for  this  period. 


80  UNIVERSITY  OF  MISSOURI  STUDIES 

news  item  from  Worcester,  in  which  it  was  said,  "We  learn  that 
the  inhabitants  of  this  county  were  so  well  united  in  the  choice 
of  electors  of  president  and  vice-president  of  the  United  States 
that  there  were  only  between  forty  and  fifty  candidates  voted  for. 
"Behold  hozv  good  and  how  pleasant  it  is  for  brethren  to  dzvell 
together  in  unity."^^  From  these  large  lists  the  names  of  the 
two  persons  standing  highest  in  each  district  were  returned  to 
the  general  court,  and  on  January  7,  in  accordance  with  the 
previous  arrangements,  the  two  houses  met  in  joint  session  and 
appointed  one  elector  from  each  district  and  two  electors  at 
large.^^     It  is  needless  to  say  that  all  were  Federal. 

In  New  Hampshire,  as  in  Massachusetts,  the  vote  was  scat- 
tering, and  as  no  one  person  received  a  majority,  the  election 
of  the  complete  list  devolved  upon  the  legislature.^^  But  suffi- 
cient provision  had  not  been  made  for  such  a  contingency.  Just 
as  the  legislature  was  ready  to  proceed  to  the  election  on  Jan- 
uary 7,  the  question  suddenly  arose  as  to  whether  it  should  be 
done  in  joint  session  or  by  concurrent  vote,  and  a  disagreement 
followed  which  lasted  almost  until  midnight.     From  all  accounts, 

38 Ibid.,  February  7,  1789. 

39  Pennsylvania  Packet,  January  20,  22,  1789. 

The  resolve  for  putting  the  general  government  into  operation  had 
provided  that  the  general  court  appoint  two  electors  at  large  "not  voted 
for  by  the  several  districts."  But  it  was  found  that  over  200  persons  had 
received  votes  in  the  district  nominations,  and  the  legislature  felt  so 
restricted  that  it  passed  a  resolve  on  January  6,  that  any  citizen  of  the 
state  not  appointed  an  elector  from  one  of  the  districts,  and  not  otherwise 
disqualified  should  be  considered  as  eligible  for  an  elector  at  large. 

■•"The  total  vote  cast  was  20142.  State  records  of  New  Hampshire, 
XXI.  25S. 

As  each  voter  was  authorized  to  vote  for  five  persons,  there  were  evi- 
dently 4029  persons  who  voted,  and  the  necessary  majority  would  be  2015. 
General  Bellows,  who  received  the  highest  popular  vote,  fell  short  of  the 
necessary  majority  by  over  250  votes,  1759  being  given  him. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  81 

contrary  to  the  New  York  situation,  no  political  question  seems 
to  have  been  involved.  It  was  a  disagreement  on  purely  consti- 
tutional grounds,  a  question  of  rights  and  privileges  as  between 
the  two  houses.  The  senate  insisted  that  the  appointment  was 
a  legislative  action,  and  that  the  upper  house  had  its  constitutional 
right  of  a  negative  upon  the  action  of  the  lower.  The  latter 
replied  with  equal  insistence  that  the  senate  had  no  right  to  con- 
trol the  choice  of  the  house,  and  that  the  appointment  should  be 
effected  by  joint  ballot.  "The  contest  terminated  in  the  lower 
branch's  acceding  to  the  proposal  of  the  upper,  and  the  choice  was 
happily  effected — the  house  'at  the  same  time  solemnly  protest- 
ing against  the  said  mode  of  choice,  and  declaring  that  in  the 
opinion  of  this  house,  the  present  mode  of  appointing  electors 
ought  not  to  be  considered  as  establishing  a  precedent,  or  drawn 
into  example,  or  insisted  upon  as  a  rule,  in  any  future  appointment 
of  electors.'  What  rendered  the  above  circumstance  more  delicate, 
and  greatly  heightened  the  anxiety  of  the  spectators,  was  the 
knowledge  that  if  a  compromise  did  not  take  place  before  the  close 
of  the  day.  New  Hampshire  would  lose  the  honor  of  giving  her 
suffrages  for  a  president  of  the  United  States."^  ^  It  is  worthy 
of  remark  that  though  the  legislature  could  have  chosen  any 
five  from  the  ten  persons  who  had  received  the  greatest  number 
of  votes  in  the  popular  election,  it  disregarded  this  prerogative 
and  simply  named  the  five  who  stood  highest. 

For  the  other  four  states  which  appointed  electors,  the 
records  are  very  meager  and  show  little  of  interest.  The  Con- 
necticut general  assembly,  on  the  specified  day,^^  appointed  the 
full  list — all  being  Federalists.  The  governor  and  council  of 
New  Jersey,  by  proclamation  dated  January  7,  named  the  six 
electors  for  that  State^^     The  Georgia  legislature  consisted  of 

^'Freeman's  Journal,  February  4,  17S9. 

<- Pennsylvania  Packet,  January  23,  27,  1789. 

*3New  Jersey  Journal  and  Political  Intelligencer,  January  14,  17S9. 


62  UNIVERSITY  OF  MISSOURI  STUDIES 

but  one  house,  and  the  appointment  was  a  simple  matter."*^ 
The  legislature  of  South  Carolina  *^  had  been  summoned  to  meet 
on  January  5,  but  it  was  January  7  before  a  quorum  of  the  house 
was  present,  and  January  12  before  a  quorum  of  the  senate 
appeared.  On  Wednesday,  January  7,  however,  all  of  the  sen- 
ators present  (being  ten)  met  with  the  house  and  the  electors 
were  chosen  by  joint  ballot.^^  Although  done  without  a  quorum 
of  the  senate^  the  election  was  legal  and  in  accordance  with  the 
act  of  the  previous  November.  The  fourth  section  of  that  act 
declared  that  the  appointment  should  be  by  such  members  of 
the  legislature  as  should  attend  on  the  first  Wednesday  in  Jan- 
uary. 

Notices  of  the  appointment  of  electors  in  the  different  states 
had  not  ceased  appearing  in  the  newspapers  before  accounts  of 
the  casting  of  electoral  votes  on  February  4  began  to  come  in. 
It  was  reported  that  the  Massachusetts  electors  proceeded  to 
business  "without  a  single  debate  on  the  subject,"^^  and  the 
same  comment  would  probably  apply  to  the  proceedings  in  the 
nine  other  states.  Only  ten  of  the  twelve  Virginia  electors 
voted,^^  and  of  the  eight  for  Maryland,  only  six  voted.  In  the 
latter  state,  it  was  explained,  "Mr.  Plater  was  confined  by  the 
gout,  and  Mr.  Richard  prevented  from  attending  by  the  ice  in 
the  river  and  bay."-*^     The  Pennsylvania  electors,  after  going 

*»  Pennsylvania  Packet,  February  23,  17S9. 

^November  4,  1788.  ''And  be  it  further  enacted  bv  the  authority 
aforesaid,  That  Electors  of  a  President  of  the  U.  S.  shall  be  appointed  by 
the  legislature  of  this  state  on  the  first  Wednesday  in  January  next,  or  by 
such  persons  as  shall  be  returned  members  thereof,  and  shall  attend  on 
that  day " 

^6  Independent  Gazetteer,  February  16,  17S9. 

<^  Pennsylvania  Packet,  February  16,  17S9. 

<*Ibid.  The  two  who  did  not  vote  were  Samuel  Kello  from  the  south- 
eastern part  of  the  state,  and  Warner  Lewis  from  the  eastern  part  of  the 
state.     No  explanation  of  their  absence  has  been  seen. 

*9Ibid.,  February  21,  17S9. 


THE    TRi\NSITIONAL    PERIOD,    1 788,    1 789  83 

throug-h  the  routine  of  casting  their  ballots,  repaired  to  the  Fed- 
eral Inn,  where,  it  was  reported,  they  dined  with  great  hilarity.^" 
In  nearly  every  case  the  result  of  the  ballot  was  soon  made 
known.  Thus  from  Georgia  came  the  news  that  after  the  ballots 
were  counted  "the  electors  politely  acknowledged  that  General 
Washington  had  the  unanimous  vote  of  the  state."  ^^ 

Summing  up  the  provisions  made  by  the  several  states  for 
the  appointment  of  electors  in  1788- 1789,  it  is  found  that  in 
four  states  the  choice  was  made  entirely  by  the  qualified  voters, 
in  three  by  the  legislatures,  in  two  by  the  voters  indirectly,  and 
in  one  by  the  governor  and  council.^^  ^  classification  politically 
of  the  seventy-three  electors  chosen  by  the  ten  states  which  par- 
ticipated in  the  election  is  impossible  to  make,  but  it  can  at  least 
be  said  that  probably  seventy  were  "friends  of  the  Constitution." 
The  list  of  persons  for  whom  votes  were  cast  for  the  vice-pres- 
idency shows  only  one  avowed  Antifederalist,  George  Clinton, 
of  New  York,  who  received  the  vote  of  the  three  Anti federalists 
elected  in  Virginia. 

5" Ibid.,  February  7,  17S9. 

51  Ibid.,  March  17,  17S9. 

*2  Dougherty,  in  his  Electoral  system  of  the  United  States,  page  303, 
gives  an  interesting  though  slightly  inaccurate  table,  showing  the  lack  of 
uniformity  and  the  frequent  changes  in  the  modes  of  appointment  of 
electors  in  the  various  states  prior  to  1832. 


CHAPTER  V 

ADJUSTMENT  OF  VARIOUS  FEDERAL  AND  STATE  RELATIONS  IN    I789 

Immediately  after  the  organization  of  the  new  Federal  gov- 
ernment a  general  constitutional  and  legal  re-adjustment  took 
place  throughout  the  Union.  The  rather  unstable  equilibrium  in 
the  relations  between  state  and  national  governments,  prevailing 
under  the  Articles  of  Confederation,  had  been  swept  away  by  the 
Constitution,  which  clashed  with,  and  rendered  obsolete  many  of 
the  provisions  of  the  state  constitutions  and  laws.  For  this 
reason  the  effort  to  bring  state  and  nation  into  proper  relations 
again  often  took  the  form  of  a  movement  to  re-codify  the  whole 
system  of  state  laws,  or  to  substitute  new  and  revised  state 
constitutions. 

Some  states  w,ere  loath  to  admit,  however,  that  the  new  order 
did  render  obsolete  conflicting  state  provisions.  In  some  quar- 
ters it  was  rather  regarded  as  an  act  of  grace  for  the  legislature 
to  revise  its  laws  so  as  not  to  "interfere"  with  the  execution  of 
federal  statutes.  Proposed  revisions  encountered  legislative  oppo- 
sition, an  opposition  which  hindered  and  in  some  cases  entirely 
prevented  any  thing  like  a  thorough  overhauling  of  state  laws 
and  constitutions.  In  these  cases  the  friends  of  revision  were 
fortunate  if  they  obtained  amendment  or  repeal  of  only  certain 
specific  acts  plainly  incompatible  with  federal  enactments. 

Of  such  conflicting  nature  were  the  state  revenue  laws. 
Previous  to  the  adoption  of  the  Federal  Constitution,  each  state 
had  established  its  own  commercial  system,  levying  import  duties 
and  enforcing  shipping  regulations.  Each  pursued  its  own  policy, 
regardless  of  the  effect  upon  neighboring  states,  and  the  result, 
bewildering  to  foreign  importers,  and  ruinous  to  the  prosperity  of 
the  country.  Was  a  medley  of  contradictory  laws. 

(84) 


THE    TR.\NSITIONAL    PERIOD,    I788,    I789  85 

Of  the  thirteen  states,  Delaware  and  New  Jersey  were  the 
only  two  which  allowed  free  trade.  The  former  had  not  levied 
any  duties  at  all  since  the  separation  from  England,  while  the 
latter  had  abolished  her  system  by  act  of  June  ii,  1783.^  All 
the  other  eleven  states  had  enacted  tariff  laws  varying  from  low 
revenue  to  high  protective  systems.  Thus  the  Massachusetts  act 
of  November,  1786,  was  "to  raise  a  public  revenue  by  impost  ;"2 
the  Virginia  act  of  October,  1782,  "for  establishing  a  permanent 
revenue  ;"3  the  North  Carolina  act  of  November,  1784,  "in  aid 
of  public  finances,"^  On  the  other  hand,  the  preamble  to  the 
New  Hampshire  act  of  March,  1786,  declared  that  it  was  meant 
not  only  to  produce  a  revenue  but  to  encourage  manufacturing  as 
well,^  while  the  Pennsylvania  act  of  September  20,  1785,  was 
passed  as  a  protective  measure  pure  and  simple.*'  It  recognized 
that  goods  might  be  imported  more  cheaply  than  manufactured 
in  Pennsylvania,  but  this  it  declared  was  poor  policy,  fatal  to  home 
industries. 

In  retaliation  for  the  royal  proclamation  of  July  2,  1783,  con- 
fining the  West  Indian  trade  to  British  shipping,  several  of  the 
states  adopted  a  special  discriminating  schedule  against  Great 
Britain.    Maryland  levied  a  duty  of  two  per  cent  ad  valorem,  over 

iNew  Jersey  Session  Laws,  1783,  Ch.  27.  This  was  the  act  author- 
izing on  the  part  of  New  Jersey  the  revenue  amendment  to  the  Articles  of 
Confederation,  proposed  by  Congress  April  12,  1788.  It  recited  that  it 
was  not  to  go  into  effect  until  all  the  other  states  in  the  Union  had  passed 
a  similar  measure,  and  enacted  "that  in  the  meantime  all  the  Ports  in  this 
State  be,  and  they  are  hereby  declared  free  and  open  for  the  Importation 
and  Exportation  of  any  Goods,  Wares  and  Merchandise  whatsoever,  clear 
of  all  Duties,  Customs  or  Impositions,  of  any  Species  or  Denomination." 

2  Laws  and  Resolves  of  Massachusetts,  November   17,  17S6. 

^Hening,  XI.  112. 

<Laws  of  North  Carolina,  1779-178S,  p.  549. 

*  Session  Laws  of  New  Hampshire. 

*  Session  Laws  of  Pennsvlvania. 


86  UNIVERSITY  OF  MISSOURI  STUDIES 

and  above  all  other  specific  and  ad  valorem  duties,  on  goods  imr 
ported  by  British  subjects,"^  while  Rhode  Island  levied  a  duty  of 
seven  and  one-half  per  cent  ad  valorem  above  the  ordinary  rates 
on  such  importations.^  In  South  Carolina,  where  specific  duties 
were  levied  in  most  cases,  the  schedule  for  British  importers 
was  from  one-third  to  tw:o-thirds  higher  than  the  schedule  for 
other  foreign  importers.^ 

In  a  number  of  cases  the  express  provision  was  made  that 
the  duties  levied  were  not  to  apply  to  goods  or  merchandise  pro- 
duced by  the  sister  states,  but  in  other  cases  two  schedules  were 
adopted,  one  applying  to  foreign  the  other  to  domestic  shipping. 
Rhode  Island  offered  a  reciprocity  plan  to  her  neighbors.  By 
act  of  June,  1783,^"  she  levied  a  two  per  cent  ad  valorem  duty 
on  all  goods  imported  from  foreign  countries.  But  if  imported 
by  citizens  of  other  states  into  their  native  state,  and  then  re- 
shipped  to  Rhode  Island,  such  goods  were  to  be  exempt  from 
the  impost,  provided  a  duty  of  two  per  cent  had  been  paid  in 
the  other  state  upon  arrival  from  the  foreign  country,  and  pro- 
vided the  other  state  gave  reciprocal  privileges  to  citizens  of 
Rhode  Island.  The  schedules  of  the  different  states  in  nearly 
every  case  included  a  number  of  articles  upon  which  specific 
duties  were  levied,  with  an  ad  valorem  duty  upon  all  remaining 
imports.  Massachusetts,  the  exception,  had  adopted  a  pure  ad 
valorem  system. 

In  addition  to  the  duties  on  imports  eight  of  the  states  had 
placed  in  operation  previous  to  1788  some  system  of  tonnage 
duties,  varying  from  four  pence  to  six  shillings  per  ton.  Dis- 
crimination was  usually  made  in  favor  of  American  bottoms, 
though  Georgia  levied  a  flat  rate  of  two  shillings  per  ton,  in  ad- 

^  Session  Laws  of  Maryland,  1783,  1784. 

8  Session  Laws  of  Rhode  Island,  May,  1785. 

9  Statutes  of  South  Carolina,  Act  of  March  27,  1787. 
'0  Session  Laws  of  Rhode  Island,  1783. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  87 

dition  to  one  shilling  per  ton  for  the  support  of  a  seamen's  hos- 
pital. ^^ 

It  seemed  to  have  been  well  understood  in  the  autumn  of 
1788  that  all  of  these  state  laws  must  soon  come  to  an  end,  but 
it  was  a  debated  question  whether  such  laws  should  be  specifi- 
cally repealed  by  the  legislatures,  or  whether  they  should  be  al- 
lowed simply  to  be  superseded  by  the  action  of  the  new  govern- 
ment. If  the  latter,  would  they  cease  to  be  operative  on  the 
fourth  of  March,  or  would  they  continue  in  force  until  a  new 
general  impost  system  went  into  operation?  According  to  the 
Constitution,  Congress  was  to  have  power  to  levy  duties  and 
imposts,  though  it  could  not  tax  exports;  on  the  other  hand  the 
states  were  forbidden,  without  consent  of  Congress,  to  lay  any 
duties  on  imports,  except  those  absolutely  necessary  for  the  ex- 
ecution of  the  inspection  laws,  or  to  levy  any  tonnage  duties.  This 
apparently  bore  out  the  contention  that  the  state  impost  laws 
would  come  to  an  end,  unless  previously  repealed  by  the  leg- 
islatures, on  the  fourth  of  the  following  March.  "A  kind  of 
interregnum,"  wrote  a  newspaper  correspondent  who  accepted 
this  interpretation,  "will  take  place  on  the  first  Wednesday  in 
March,  w-ith  respect  to  duties  on  imports;  as  on  that  day  the 
power  of  an  individual  state  to  collect  such  duties,  'except  what 
may  be  absolutely  necessary  for  executing  its  inspection  laws,' 
will  cease;  and  it  must  require  some  time  for  Congress,  after 
having  made  the  arrangements  necessary  for  proceeding  to  busi- 
ness, to  form  and  put  in  execution  a  system  of  revenue.  This  will 
be  rather  an  unfavorable  circumstance  for  public  credit;  but  in- 
dividuals, who  may  be  so  fortunate  as  to  make  importations  during 
that  interval  of  free  trade,  will  no  douljt  make  a  considerable  sav- 
ing by  it."^2 

'^  Act  of  February  i,  17S9. 

'2  Independent  Gazetteer,  February  27,  1789.  Similarly  a  writer  in  the 
Virginia  Independent  Chronicle,  December  24,  1788,  on  the  subject  of  the 
public  debt  of  Virginia,  took  it  for  granted  that  the  impost  of  the  state 
would  cease  after  March  4,  1789. 


88  UNIVERSITY  OF  MISSOURI  STUDIES 

The  same  view  was  taken  by  the  Pennsylvania  Assembly  com- 
mittee of  ways  and  means.  Estimating  the  revenues  and  expen- 
ditures for  the  year  1789,  it  reported,  "as  the  government  of  the 
United  States  have,  by  their  Constitution,  the  exclusive  right  of 
levying  imposts,  of  course  that  part  of  the  revenue  of  Pennsyl- 
vania will  immediately  cease."^^  7^^  impost  had  produced  in 
1788  £52,000,  which,  added  to  £3,200  produced  by  the  duty  on  for- 
eign and  domestic  tonnage  made  a  reduction  of  the  revenue  to 
the  amount  of  £55,200  for  the  year  1789. 

In  Virginia  the  opinion  was  expressed  in  the  summer  of  1788 
that  the  state  impost  laws  had  been  annulled  the  moment  the  Con- 
stitution was  ratified.  Several  prominent  and  influential  shippers 
of  Accomac  County,  alleged  Antifederalists,  insisted  that  so  much 
of  the  law  as  required  vessels  trading  between  the  states  to  pay 
duties  was  totally  abrogated  by  the  new  Constitution,  and  threats 
were  made  against  any  officer  who  should  attempt  to  enforce  that 
provision  of  the  state  act.  In  this  dilemma,  a  naval  officer  wrote 
to  George  Corbin,  the  Attorney-General  of  the  state,  asking 
specifically  whether  or  not  the  new  Constitution  annulled  the  pro- 
vision of  the  state  law  in  question.  Corbin  replied  as  specifically : 
"I  am  of  opinion  it  does,  being  now  the  supreme  Law  of  the 
Land."^*  In  the  face  of  this  opinion  the  naval  officer  could  not 
enforce  the  law  but  at  once  appealed  from  the  decision  of  Corbin 
to  Governor  Randolph.  The  latter  turned  the  question  over  to 
the  general  assembly,  which  met  soon  afterward.  It  apparently 
decided  that  the  state  law  would  be  in  force  until  the  following 
March.  Its  general  attitude  is  indicated  in  a  letter  written  by 
Monroe  to  Madison,  November  22,  1788.  "It  is  generally 
agreed,"  he  said,  "to  make  no  other  alteration  in  the  revenue  sys- 
tem than  by  such  change  in  the  appropriation  as  will  supply  the 
defect  of  the  impost  wh.  will  belong  to  the  U.  S.  after  March. 
Whether  the  impost  system  of  the  state  shall  cease  then,  or  con- 
's Minutes  of  the  Assembly  of  Pennsylvania,  February  17,  17S9. 
'^Calendar  of  Virginia  State  Papers,  IV.  470,  500. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  89 

tinue  until  contrary  provisions  are  made,  seems  to  be  a  doubtful 
question.  An  apprehension  that  other  states  may  lay  theirs 
aside  and  open  their  ports  free  from  duty  in  the  interval,  has 
weight  on  the  minds  of  some  and  disposes  them  for  a  similar 
measure,  especially  as  they  suppose  the  amt.  will  belong  to  the 
U.  S.,  but  I  rather  believe  ours  will  be  continued  until  Congress 
directs  otherwise,  let  the  revenue  accrue  to  whom  it  may."^^ 
Before  the  assembly  adjourned  it  passed  "An  Act  concerning  cer- 
tain public  establishments,"^^  the  first  article  of  which  recited 
that  the  operation  of  the  government  of  the  United  States  would 
render  unnecessary  several  public  establishments  which  existed 
under  the  laws  of  the  state.  Therefore  it  was  provided  "that 
so  soon  as  it  shall  be  notified  to  the  executive  by  Congress,  that 
measures  have  been  by  them  taken  concerning  duties  or  imposts, 
all  laws  concerning  naval  officers,  collectors  of  duties  and  search- 
ers, and  their  salaries,  and  concerning  duties  and  imposts  of  every 
denomination  whatsoever,  shall  cease  and  determine;  except  the 
duty  of  six  shillings  per  hogshead  on  tobacco  exported,  reserved 
for  inspection  duties."  Upon  receiving  notification  of  such  action 
by  Congress,  the  Governor  was  to  announce  it  by  proclamation, 
the  revenue  officers  were  to  balance  and  close  their  accounts, 
and  the  revenue  cutters  were  to  be  discontinued  and  sold. 

The  thing  of  which  the  Virginia  assemblymen  were  appre- 
hensive, according  to  Monroe's  letter,  actually  occurred  in  Con- 
necticut. In  January,  1789,  the  general  assembly  of  that  state 
passed  an  act  by  which  all  laws,  "so  far  as  they  relate  to  the 
levying  and  collecting  a  Duty  on  Articles  imported  into  this 
State,  by  Land  or  Water,  shall  from  and  after  the  first  Day  of 
February  next,  as  relative  to  Articles  thereafter  imported,  cease 
and  determine."^^     Evidently  then,  Connecticut  had  free  trade 

^*  Writings  of  Monroe,  I.  197. 

'*  Hening,  XII.  779. 

"Acts  and  Laws  of  Connecticut,  p.  377. 


90  UNIVERSITY  OF  MISSOURI  STUDIES 

from  the  first  of  February,  1789,  to  the  time  in  August  when  the 
national  tariff  law  went  into  effect. 

The  Georgia  assembly  apparently  took  the  ground  that  reve- 
nues arising  under  state  laws  accrued  to  the  state  as  long  as  the 
law  was  in  force,  and  that  it  required  special  action  of  the  legis- 
lature to  repeal  such  laws.  By  section  three  of  an  act  of  Feb- 
ruary I,  1789,  amendatory  of  a  previous  revenue  law,  it  was  pro- 
vided: "This  act  shall  be  in  force  and  virtue  immediately  from 
the  passing  of  the  same  until  the  United  States  in  Congress  as- 
sembled shall  by  their  act  order  otherwise,  and  no  longer."^^ 

While  the  Pennsylvania  assembly  did  not  specifically  repeal 
the  state  impost  laws,  it  was  recognized,  in  an  act  of  March  2^, 
1789,  relative  to  the  monetary  engagements  of  the  state,  that 
an  act  of  Congress  would  soon  displace  the  state  law.^^  The 
report  of  the  committee  of  ways  and  means  of  the  previous  Feb- 
ruary 17,  that  the  revenue  arising  from  the  state  impost  would 
immediately  cease  (see  above),  was  known  by  this  time  to  have 
been  partially  incorrect,  for  such  revenue  was  still  coming  into 
the  treasury  of  that  state. 

Massachusetts  was  the  last  state  to  pass  any  repealing  pro- 
visions before  the  Federal  statute  went  into  effect.  Late  in 
June  the  general  court  enacted  that  the  state  impost  law  should 
be  annulled  at  the  time  the  act  or  law  that  should  be  made  by 
Congress,  for  the  purpose  of  raising  a  public  revenue  by  impost, 
should  begin  to  operate.^o  But  in  order  to  prevent  any  misunder- 
standing, a  resolve  was  passed  to  continue  in  office  the  impost 
collectors  until  further  orders.^i 

At  the  time  of  the  passage  of  this  Massachusetts  repealing 
act,  Congress  had  almost  completed  the  formation  of  a  general 

18  Iredell's  Laws  of  Georgia,  p.  383. 
18  Session  Laws  of  Pennsylvania. 

20 Laws   and    Resolves    of   Massachusetts,    1788-1789,    p.    41  v     Act    of 
June  25,  1789. 

2'  Massachusetts  Centinel,  June  27,  17S9. 


THE   TR.\NSITIONAL    TKRIOD,    I788,    I789  9' 

tariff  system  for  the  new  government.    The  creation  and  execu- 
tion of  a  scheme  for  producing  a  sufficient  national  revenue  had 
invoked  the  earliest  attention  of  the  national  Legislature    and 
as  soon  as  the  organization  of  the  two  houses  was  completed  th.s 
important     subject  was  submitted  to  the     cons.derafon  of  the 
House  of  Representatives  -     On  April  8.  in  Committee  o    the 
Whole  on  the  State  of  the  Union,  Madison  introduced  tlte  subject 
by  proposing  that,  in  order  to  supply  immediate  financial  needs, 
the  recommendations  by   Congress  in   1783   for  establishing  a 
national  revenue  be  tal<en  as  the  basis  of  a  temporary  system 
leaving  a  permanent  system  to  be  worlced  out  later.    This  did 
not  meet  the  approval  of  the  majority  of  the  members  of  Con- 
gress, and  after  a  delay  of  nearly  four  months  a  fairly  com- 
plete and  permanent  system,  consisting  of  three  separate  meas- 
ures,  was  evolved.^s 

The  last  thing  necessary  to  be  done  before  this  series  of  reve- 
nue laws  could  go  into  operation  was  the  appointment  of  the  va- 
rious revenue  officials  to  enforce  the  tariff  regulations  and  make 
the  actual  collections  at  the  ports.  An  army  of  office-seekers  had 
been  besieging  Washington  by  correspondence  and  personal  inter- 
view even  as  early  as  the  previous  autumn,  but  he  had  repeat- 
edlv  declared  that  he  would  enter  his  work  free  from  promises  or 
engagements  of  any  kind."  There  were  certain  guiding  principles 
which  he  necessarilv  followed  in  making  his  appointments.-'  He 
probably  shared  in  a  prevailing  sentiment  of  that  time  that  a  man 

»  I,  is  not  the  intention  to  give  a  complete  account  of  the  action  of 
congress  in  the  formation  of  this  fits,  tariff  act  under  the  Constitution. 

'au  act  for  laying  a  duty  on  Goods,  Wares  and  Merchand.ses  tn,- 
ported  into  the  United  States,  An  Ac.  imposing  duties  on  Tonnage,  An  Act 
,0  regulate  the  Collection  of  the  Duties Statutes  at  Large,  I.  -4, 

27,     29. 

2^  Writings  of  Washington,  Ford's  Edition,  IX.  349- 
.^Seeon  this  point,  Office-seeking  during  Washington's   admm.stra- 
tion,  bv  G.  Hunt,  American  Historical  Review,  I.  270-283. 


92  UNIVERSITY  OF  MISSOURI  STUDIES 

had  a  property  right  in  the  retention  of  his  office.  This  is  well 
illustrated  in  a  letter  he  wrote  to  Benjamin  Harrison  of  Virginia. 
Colonel  Parker  had  resigned  his  position  as  naval  officer  of  Nor- 
folk in  order  to  take  his  seat  in  Congress,  and  the  Council  had 
chosen  William  Lindsay  to  succeed  him.  In  the  meantime  Harri- 
son applied  to  Washington  for  the  office  as  soon  as  a  Federal  law 
should  commence  operation,  and  in  reply  Washington  said,  in 
part:  "I  wish  you  had  pursued  the  policy  which  the  gentlemen 
who  now  occupies  it  [the  office]  has  done,  of  obtaining  the  ap- 
pointment from  the  executive  of  this  State.  Although  that  gentle- 
man was  an  officer,  yet  he  is  quite  unknown  to  me,  and  therefore 
1  cannot  speak  at  all  upon  the  ground  of  comparative  claims  of 
personal  merit.  I  conceive,  however,  it  will  be  found  no  pleasant 
thing,  possibly  very  much  the  reverse,  to  displace  one  man  under 
these  circumstances  of  actual  occupancy,  merely  to  make  room  for 
another,  however  considerable  his  abilities,  or  unimpeached  his 
integrity  may  appear  to  the  public  eye."^^ 

The  list  of  appointments  was  received  by  the  Senate  on 
August  3.  A  majority  on  the  list  had  been  in  service  under  the 
state  governments  and  formed  exactly  what  was  needed  to  carry 
out  the  new  regulations,  a  trained  body  of  officials.  Within  the 
next  two  days  the  Senate  approved  nearly  all  the  appointees, 
delaying  action  upon  three  for  want  of  more  information,  and 
flatly  rejecting  only  one,  Benjamin  Fishbourn  of  Savannah.  For 
the  last  the  President  promptly  supplied  a  substitute.^' 

It  was  obviously  impossible  for  the  impost  law  to  go  into 
operation  on  the  day  prescribed  in  the  act,  August  i.  But  begin- 
ning with  the  organization  of  the  New  York  custom  house  on 
August  5,  the  national  system  was  extended  as  rapidly  as  news 

26  Writings  of  Washington,  XI.  367.  Lindsay  was  later  continued  by 
Washington. 

27  Journal  of  the  Executive  Proceedings  of  the  Senate,  I.  9  et  seq. 
The  President  defended  Fishbourn  vigorously,  giving  reasons  for  his 
appointment. 


THE    TRANSITIONAL    PERIOD,    1/88,    1 789  93 

could  be  received  of  the  appointments,  the  time  varying  from  the 
fifth  to  the  last  of  August.-*^  In  the  interval,  from  the  beginning 
of  the  month  to  the  time  when  the  notice  was  received  in  the 
respective  states,  several  importations  took  place  upon  which  in 
some  cases  duties  were  paid  under  the  state  laws  while  in  others 
none  at  all  were  paid.  The  question  arose  as  to  whether  the 
United  States,  having  no  officers  to  make  the  collections  at  the 
time,  could  collect  later.  Hamilton,  placed  at  the  head  of  the 
Treasury  Department  in  September,  believed  it  to  be  a  clear 
point  that  the  duties  on  all  goods  imported  after  August  i,  accrued 
as  debts  to  the  Federal  government,  the  regulations  prescribed 
by  the  collection  law  for  securing  the  payments  being  merely 
auxiliary  guards,  not  essential  pre-conditions.  Accordingly,  not 
feeling  at  liberty  to  waive  the  claims  for  such  duties,  he  insti- 
tuted proceedings  some  months  later,  with  a  view  to  a  legal  de- 
cision.29  At  the  same  time  he  suggested  to  Congress  the  advis- 
ability of  relinquishing  these  claims.  It  had  not  been  expected  by 
importers  that  the  payment  of  duties  during  the  transitional  period 
would  be  demanded.  The  claim  could  be  enforced  only  after 
favorable  legal  decisions  in  nearly  every  specific  case,  a  proceeding 
which  generally  would  be  regarded  as  quite  rigorous.  Further- 
more, in  some  cases,  actual  injury  would  result  if  the  claims  were 
pressed.     For  instance,  merchants  had  sold  their  goods  without 

®  A  short  report  by  Hamilton  dated  March  4,  1790,  containing  an 
abstract  of  the  net  proceeds  for  the  duties  on  imports  and  tonnage  to 
December  31,  1789,  gives  the  time  at  which  the  law  went  into  operation  in 
each  of  the  eleven  states.  According  to  this,  the  collections  began  in 
New  Jersey  and  Delaware  August  i  (plainly  a  mistake,  as  the  appointments 
were  not  sent  to  the  Senate  until  August  3),  in  New  York,  August  5,  in 
Maryland,  Pennsylvania  and  Massachusetts,  August  10,  in  New  Hampshire 
and  Connecticut,  August  11,  in  Virginia,  August  17,  in  Georgia,  August  22, 
and  in  South  Carolina,  August  31. 

-^Report  of  Hamilton,  April  23,  1790,  On  the  Operations  ot  the  Act 
laying  Duties  on  Imports. 


94  UNIVERSITY  OF  MISSOURI  STUDIES 

reference  in  the  price  to  the  duty;  agents  had  settled  accounts 
and  paid  over  the  proceeds  of  goods  to  their  principals ;  and  duties 
had  been  paid  in  some  cases  under  state  establishments.  Finally, 
even  if  the  justice  and  legality  of  the  claims  were  established,  it 
would  still  be  difficult  to  determine  the  exact  sums  due  on  importa- 
tions which  had  occurred  several  months  before  the  claims  were 
presented. 

Congress  took  no  action  on  the  Secretary's  recommendation, 
but  these  demands  seem  never  to  have  been  pressed.  The  difficul- 
ties were  evidently  too  great,  and  the  compensation  too  slight 
to  carry  to  a  judicial  decision  so  unpopular  a  claim.  At  most 
the  returns  would  not  have  exceeded  a  few  hundred  dollars  — 
far  too  small  a  matter  for  which  to  risk  the  good  will  of  the  im- 
porters at  the  very  commencement  of  the  new  system.^o 

There  were  other  questions  which  caused  considerable  vexa- 
tion to  the  merchants  and  which  the  states  themselves  had  to 
settle.  Two  such  questions  came  before  the  Supreme  Executive 
Council  of  Pennsylvania  for  decision.  On  August  4,  the  state 
collector,  Sharp  Delany,  laid  before  the  Council  a  statement  of 
the  various  limitation  provisions  in  the  impost  and  tonnage  acts 
passed  by  the  assembly  since  1783.  It  appeared  that  some  of  the 
acts  were  without  limitations,  while  some  were  limited  "until 
that  part  of  the  resolve  of  Congress  of  April  18,  1783,  be  ac- 
ceded to  by  each  and  every  of  the  thirteen  United  States,  and  from 
thence  to  the  End  of  the  next  Sitting  of  the  Assembly  and  no 
longer"3i — a  condition  never  fulfilled.    The  collector  now  wished 

*  In  New  Hampshire  the  revenue  from  the  imposts  went  into  the  state 
treasury  until  August  11,  the  collector  being  allowed  ten  per  cent  of  the 
duties  to  that  date.  New  Hampshire  State  Papers,  XXI.  735.  Had 
Hamilton  pressed  the  United  States  government  claims,  petitions  would 
have  been  presented  to  the  state  government  for  rebate,  but  no  such  peti- 
tions appear  to  have  been  made. 

31  Act  of  September  25,  1783.  Session  laws  of  Pennsvlvania.  See 
also  act  of  September  20,   17S5. 


THE    TRANSITIONAL    PERIOD,    1 788,    1 789  95 

for  directions  as  to  how  far  these  acts  were  superseded  by  the 
laws  of  the  United  States,  though  at  the  same  time  he  called 
attention  to  the  fact  that  should  the  state  laws  remain  in  force, 
there  would  be  no  benefit  to  the  state  treasury,  for  according  to 
the  new  Constitution  the  proceeds  of  the  collection  would  go 
into  the  treasury  of  the  United  States.  But  admitting  that  the 
state  laws  were  superseded  by  the  Federal  law,  there  was  a  second 
matter  upon  which  the  collector  was  not  sure  of  his  position.  The 
state  laws  had  provided  that  if  goods  upon  which  duties  had 
beeen  paid  should  be  re-exported  within  a  certain  time  and  under 
certain  conditions,  the  whole  of  the  duty  would  be  returned.  The 
merchants  of  Philadelphia  had  imported  goods  before  the  first 
of  August  upon  which  they  had  paid  state  duties,  and,  in  the 
course  of  their  business  were  daily  exporting  such  goods  after  the 
first  of  August  and  demanding  drawbacks.  The  question  was, 
under  these  circumstances  were  they  entitled  to  drawbacks  P^- 

These  questions  were  at  once  referred  by  the  Council  to  a 
special  committee  with  instructions  to  consult  the  judges  of  the 
Supreme  Court  and  the  attorney  general.^^  Four  days  later  the 
committee  reported  the  following  opinion  from  the  judicial  offi- 
cers :  'Tn  answer  to  the  first  question,  we  conceive  that  all  the 
acts  and  parts  of  acts  of  Assembly  of  the  State  of  Pennsylvania, 
so  far  as  they  authorize  or  require  imposts  or  duties  to  be  paid  to 
the  use  of  the  said  commonwealth,  upon  goods,  wares  and  mer- 
chandize imported  within  the  said  State,  have  ceased  to  have  any 
legal  operation  or  binding  force. 

"To  the  second  question,  as  the  authority  and  powers  of  the 
Collector  and  Naval  Officer  of  the  State  of  Pennsylvania  have 
ceased  with  respect  to  any  future  act  to  be  done  by  them,  as  such 
it  appears  to  us,  that  no  drawback  or  return  of  the  duties  paid, 
or  secured  to  be  paid,  can  be  made  to  the  merchants  or  persons 
who  may  propose  to  export  the  goods,  etc.,  agreeably  to  the  pro- 

3^ Pennsylvania  Archives,  XI.  597. 

35  Colonial  Records  of  Pennsylvania,  XVI.  124. 


gS  UNIVERSITY  OF  MISSOURI  STUDIES 

visions  made  by  the  said  acts  of  Assembly,  without  the  aid  of  the 
legislature.  "3^ 

This  opinion  was  accepted  and  concurred  in  by  the  Council, 
and  sent  to  Sharp  Delany  as  an  answer  to  his  questions.  It 
was  satisfactory  to  the  merchants  in  so  far  as  state  duties  were 
concerned,  but  not  in  regard  to  drawbacks,  and  so,  taking  the 
hint  from  the  judges'  answer  that  the  legislature  might  be  able 
to  offer  assistance,  they  petitioned  the  assembly  a  few  days  later 
for  relief.  After  considerable  opposition,  favorable  action  w^as 
taken  by  the  close  vote  of  twenty-five  to  twenty-three.  Delany 
was  declared  to  be  state  collector  still  on  all  goods  imported  before 
August  I  and  as  such  was  bound  to  account  for  all  duties  or 
bonds  for  duties  received  before  that  time,  and  to  pay  drawbacks 
on  any  goods  exported  which  had  been  imported  previous  to 
August  1.2^ 

In  Virginia  Governor  Beverley  Randolph  issued  a  proclama- 
tion July  21,  commanding  the  state  revenue  officers  to  cease  the 
exercise  of  their  powers  from  and  after  the  first  of  the  following 
August.  The  books  and  papers  of  the  local  officers  were  to  be 
sent  to  Richmond  for  preservation.  At  least  one  collector  how- 
ever, Charles  Lee  of  Alexandria,  interpreted  this  not  to  include 
bonds  which  he  held  against  merchants  for  duties  on  goods  im- 
ported before  August  i.  He  decided  to  retain  such  bonds  and 
make  the  collections  himself  as  they  fell  due  after  August  i, 
for,  as  he  wTote  the  governor,  by  so  doing  he  w^ould  receive  a 
commission  of  one  per  cent,  the  merchants  would  pay  the  bonds 
more  conveniently  there  than  at  Richmond,  and  the  duties  would 
be  received  at  the  state  treasury  more  promptly.3<5  This  was 
evidently  satisfactory  to  everyone  concerned. 

As  compared  with  the  lax  enforcement  of  the  various  state 
laws,  the  strict   observance   required   of  the   Federal   law  gave 

3*  Colonial  Records  of  Pennsylvania,  XVI.  128,  129. 
3*  Session  Laws  of  Pennsylvania,  September  29,  17S9, 
■^  Calendar  of  Virginia  State  Papers,  V.  iS. 


THE    TR/\NSITIONAL    PERIOD,    I788,     1 789  97 

an  air  of  rigor  to  the  new  system.  A  good  example  of  this  is 
furnished  by  contrasting  the  different  poHcies  pursued  in  regard 
to  the  payment  of  bonds.  Under  the  old  system  when  bonds  be- 
came due,  the  time  of  payment  was  frequently  extended,  or 
partial  payments  received,  at  the  convenience  of  the  debtor.  But 
under  the  new  system  this  was  changed.  Shortly  after  taking 
office,  Hamilton  sent  out  a  circular  letter  to  the  revenue  officers 
directing  them  to  immediately  put  in  suit  bonds  which  were  not 
paid  as  they  fell  due.  On  this  point,  he  wrote,  "the  most  exact 
punctuality  will  be  considered  as  indispensable."^"  H,e  regarded 
this  strictness  as  not  only  necessary  to  the  public  business,  but 
as  also  eventually  most  convenient  to  importers,  for,  according 
to  the  act  to  regulate  the  collection  of  duties,  no  person  against 
whom  there  was  an  unsatisfied  bond  could  be  allowed  future 
credit  until  such  bond  was  fully  paid. 

Smugglers,  too,  soon  came  to  realize  the  energetic  character 
of  the  new  administration.  Accustomed  to  ply  their  trade  al- 
most with  impunity,  they  now  found  that  infractions  of  the  law 
were  followed  by  vigorous  prosecution.  Before  the  first  month 
of  the  new  regime  had  gone  by  several  of  these  offenders  were 
caught  and  heavily  fined.^s 

Another  effect  of  the  federal  Constitution  upon  state  laws 
passed  during  the  period  of  the  Confederation  is  presented  in 
the  discontinuance  of  the  state  admiralty  courts  after  1789. 

During  the  colonial  period,  vice-admiralty  courts  had  been 
established  in  the  different  colonies,  the  commissions  emanating 
from  the  crown.  They  had,  added  to  the  usual  jurisdiction,  the 
cognizance  of  all  cases  of  seizure  afloat  for  the  violation  of  the 
revenue  laws.  For  this  reason  they  were  very  unpopular  at  the 
outbreak  of  the  Revolutionary  war.  Nevertheless  the  need  of 
some  such  court   was  patent,  and  upon  the   recommendation  of 

^Maryland  Journal,  January  12,  1790. 

**  American  Museum,  VIII.  Appendix  4,  p.  4.  The  newspapers  also 
speak  of  the  activity  of  the  government  in  this  respect. 

7 


98  UNIVERSITY  OF  MISSOURI  STUDIES 

Congress  of  November  25,  1775,^^  admiralty  courts  were  gen- 
erally erected  by  the  states.  In  some  instances  there  was  merely 
a  change  in  the  personnel  of  the  judges,  the  old  courts  being  re- 
tained. In  others,  new  courts  were  established  with  well  de- 
fined powers.  Amendments  were  passed  from  time  to  time  until 
by  1789  much  dissimilarity  existed  in  the  jurisdiction  exercised 
in  different  states.  But  no  matter  what  the  provisions 
of  the  various  laws,  they  were  alike  forceless  after  the  organi- 
zation of  the  new  government."*^ 

One  of  three  courses  was  open  to  the  state  legislatures.  They 
might  take  no  action  whatever  upon  the  subject,  in  which  case 
their  admiralty  laws  would  become  obsolete  through  the  preced- 
ence of  the  Federal  Constitution  and  laws;  they  might  omit  to 
make  provision  for  the  admiralty  courts  in  the  re-codification  of 
the  state  laws  or  in  the  revised  state  constitutions,  which  omis- 
sion would  amount  to  a  repeal ;  or  they  might  specifically  repeal 
parts  or  all  of  their  admiralty  laws.  As  it  turned  out,  each  of 
the  three  courses  was  followed  by  about  an  equal  number  of 
states. 

Pennsylvania,  one  of  the  states  which  adopted  the  last  method, 
apparently  feared  that  the  judge  of  the  admiralty  might  be  legally 
able  to  hold  the  state  for  his  salary  even  after  he  no  longer  had 
any  court  over  which  to  preside.  At  any  rate  the  act  of  December 
7,  1789,  recited  the  fact  that  the  United  States  District  Court  had 
exclusive  jurisdiction  of  admiralty  causes  and  declared  it  inex- 
pedient to  continue  a  salary  after  the  duties  of  the  office  had 
ceased.  Francis  Hopkinson  was  the  last  judge  of  the  admiralty 
of  Pennsylvania,  but  upon  the  passage  of  the  United  States  judi- 
ciary act  in  September,  Washington  appointed  him  United  States 
district  judge  for  the  district  of  Pennsylvania.     He  himself  had 

39Journal  of  the  Continental  Congress,  new  ed..  III.  373. 

■•0  Article  III,  section  2,  of  the  Constitution,  provides  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  of  admiralty  and 
maritime  jurisdiction. 


THE    TR.\NSITIONAL    PERIOD,    1 788,     1 789  99 

evidently  come  to  the  conclusion  that  the  state  law  was  superseded 
and  void  even  before  the  passage  of  the  act  of  Decemebr  7,  for 
under  date  of  November  6,  1789,  he  advised  the  Council  to  take 
some  measure  for  the  safe  keeping  of  the  records  of  the  "late 
court  of  admiralty."  The  last  recorded  payment  of  salary  to 
Hopkinson  as  judge  of  the  admiralty  was  for  the  quarter  ending 
September  13,  1789. 

In  Virginia  an  act  of  December  22,  1788,  provided  that  the 
cases  in  which  the  court  of  admiralty  had  jurisdiction,  and  which 
were  not  taken  away  by  the  Constitution  of  the  United  States, 
were  to  be  transferred  to  the  district  courts  of  the  state.  Another 
act,  a  few  days  later,  discontinued  the  salaries  of  the  admiralty 
judges,  and  the  court  of  admiralty,  after  March  4,  1789.^  ^ 

The  naturalization  clause  of  the  Federal  Constitution  trans- 
ferred also  to  the  central  government  power  which  the  states  had 
exercised  under  the  Articles  of  Confederation.  The  provision  of 
the  Articles  that  the  free  inhabitants  of  each  of  the  states  be  en- 
titled to  all  the  privileges  and  immunities  of  free  citizens  in  the 
several  states,  had  only  rendered  more  chaotic  a  condition  already 
bad  enough.  States  with  stringent  naturalization  rules  soon  had 
cause  for  complaint  against  the  states  with  easy  admission  re- 
quirements. It  was  felt  that  there  ought  to  be  a  uniform  practice, 
and  this  feeling,  expressed  in  the  Convention,  led  to  the  provision 
in  the  Constitution  that  Congress  should  have  power  "to  estab- 
lish a  uniform  rule  of  naturalization."  Nothing  was  done  in  the 
first  session  of  Congress  to  provide  such  uniformity,  but  in  1790, 
following  a  recommendation  in  Washington's  first  annual  mes- 
sage, the  first  Federal  law  upon  the  subject  was  passed.^-  "The 
governing  ideas,"  says  Maclay  in  his  report  of  the  debate  in  the 
Senate  over  the  bill,  "seemed  to  be  the  following :  That  the  hold- 
ing property  w^as  separable  from  and  not  absolutely  connected  with 
naturalization ;  that  laws  and  regulations  relating  to  property,  not 

<'  Hening,  XII.  769. 

<- United  States  Statutes  at  Large,  I.  103. 


100  UNIVERSITY  OF  MISSOURI  STUDIES 

being  among  the  powers  granted  to  Congress,  remained  with 
the  different  states""*^  There  is  no  record  of  any  of  the  states 
specifically  repealing  their  old  naturalization  laws  upon  the  pas- 
sage of  the  national  act,  but,  exercising  the  right  which  Maclay 
says  remained  to  them,  several  of  them  did  pass  acts  prescribing 
the  terms  upon  which  foreigners  could  hold  property  w^ithin  their 
boundaries. 

Again,  under  the  Articles  of  Confederation,  the  states  shared 
with  Congress  the  power  of  coining  money,  of  emitting  bills  of 
credit,  and  of  making  their  promissory  notes  a  legal  tender  for 
debts,  while  the  new  Constitution  placed  such  powers  in  the 
hands  of  Congress  alone.^"*  Those  states  which  had  established 
mints  were  forced  to  suspend  operations,^^  while  at  the  same  time 
provision  had  to  be  made  to  take  the  state  paper  money  out  of 
circulation.^^  Hamilton's  funding  measure,  too,  upset  the  states' 
financial  legislation.  All  had  taken  some  action  to  provide  for 
their  public  indebtedness,  but  after  the  passage  of  the  assumption 
measure  in  1790  they  were  enabled  either  to  repeal  these  special 
measures  or  to  turn  the  proceeds  arising  from  this  legislation  to 
other  accounts.  Massachusetts  had  passed  an  excise  act  in 
March,  1790,  the  revenue  from  which  it  was  proposed  to  appro- 
priate to  the  payment  of  interest  on  the  debt  of  the  commonwealth. 
But  in  the  following  June  the  probability  of  the  success  of  the 
national  funding  scheme  was  so  great  that  the  legislature  was 

••3  William  Maclay,  Sketches  of  Debate  in  the  First  Senate  of  the 
United  States,  p.  181. 

<<  Art.  I,  section  S,  clause  5;   and  section  10,  clause  i. 

••*  Thus  the  legislature  of  Connecticut  in  May,  17S9,  suspended  a 
license  previously  granted  to  certain  persons  in  New  Haven  to  manufacture 
copper  coin.     Gazette  of  the  United  States,  July  8,  1789. 

^8  A  correspondent  of  the  New  Jersey  Journal  and  Political  Intelligencer, 
October  7,  1789,  concluded  that  the  New  Jersey  paper  money  had  not  had, 
since  the  previous  March  4,  any  legal  tender  value  in  compulsory  payments 
of  debts. 


THE    TRANSITIONAL    PERIOD,     I788,     I789  lOI 

induced  to  repeal  conditionally  the  act  of  the  previous  March.*'^ 
When  the  legislature  met  again  the  following  September,  the 
funding  scheme  was  an  assured  fact,  and  so  the  state  excise 
law  was  finally  and  unprovisionally  repealed.  North  Carolina, 
in  December,  1789,  as  a  means  for  the  payment  of  the  state 
debt,  levied  a  tax  of  two  shillings  per  hundred  acres  of  land,  five 
shillings  per  £100  value  of  town  lots  with  their  improvements, 
and  five  shillings  per  poll.  This  was  to  be  in  force  till  the  state 
debt  was  paid,  but  the  passage  of  the  national  assumption  act  a 
few  months  later  rendered  this  tax  unnecessary,  and  it  was  re- 
pealed in  December,  1790,^^  In  New  Jersey  an  act  passed  in 
1787  to  raise  £12,500  per  annum  for  twenty-two  years  to  pay 
interest  on  the  state  debt  was  repealed  November  18,  1790. 

The  old  Congress  had,  in  1785,  taken  advantage  of  its  right 
to  regulate  the  coinage,  and  had  adopted  the  decimal  system,  but 
had  taken  no  action  to  displace  the  worn  out  currency  with 
coinage  of  the  new  system.  As  a  result  the  states  simply  kept 
their  old  systems  in  force.  This  chaotic  condition  of  the  currency 
existed  until  1792  when  Congress  passed  remedial  legislation. 
The  decimal  system  w^as  definitely  established,  and  provision  made 
for  the  coinage  of  a  large  amount  of  new  currency.  It  thus  be- 
came a  matter  of  convenience  for  the  states  to  have  the  same 
legal  money  of  account  as  the  United  States,  and  one  after  an- 
other they  gradually  adopted  the  decimal  system. 

In  two  additional  ways  the  central  government  after  1789 
lessened  the  expenditures  of  the  state  governments— by  its  main- 
tenance of  lighthouses  and  by  its  payment  of  military  pensions. 
By  act  of  August  7,  1789,  Congress  provided  that  the  expenses  of 
keeping  lighthouses,  beacons,  buoys,  and  public  piers  in  order 
should  be  borne  by  the  United  States  after  August  15,  1789, 
provided  cessions  of  such  should  be  made  to  the  United  States 
wnthin  one  year.     The  measure  w^as  so  obviously  calculated  to 

••'  Laws  of  Massachusetts,  II.  S7,  June  24,  1790,  Ch.  xiv. 
■"*  Laws  of  North  Carolina,  Iredell's  ed.,  1791,  pp.  666,  701. 


102  UNIVERSITY  OF  MISSOURI  STUDIES 

produce  more  uniformity  in  the  regulation  of  commerce,  at  the 
same  time  considerably  reducing  the  running  expenses  of  the 
states,  that  nearly  all  such  places  were  ceded  to  the  central  gov- 
ernment within  a  few  months.  The  acts  of  cession  were  usually 
short  and  to  the  point,  containing  little  beyond  the  mere  transfer- 
ence of  the  place  in  question.  The  Pennsylvania  act  declared 
it  was  necessary  to  make  the  cession  in  order  that  the  power  of 
Congress  over  commerce  might  be  carried  into  effect.  The 
preamble  to  the  Delaware  act  reported  that  Delaware  was  "de- 
sirous to  promote  general  regulations  respecting  lighthouses, 
beacons,  boys  [sic]  and  public  piers."  New  York  and  New 
Hampshire  provided  that  if  the  United  States  should  make  any 
compensation  to  other  states  for  like  cessions,  such  compensation 
should  be  made  to  them  in  proportion  to  the  respective  values. 

The  payment  of  military  pensions  had  been  made,  during  and 
after  the  war,  by  the  various  states,  the  laws  of  which  on  this 
subject  had  been  as  varied  as  could  possibly  be  the  case  with  thir- 
teen distinct  legislatures  struggling  with  the  question.  But  by 
a  resolution  of  June  7,  1785,  Congress  had  recommended  to  tlie 
states  definite  and  uniform  provisions  for  officers,  soldiers  and 
seamen  disabled  in  the  service  of  the  nation.  Regulations  for 
carrying  out  these  provisions  were  to  be  left  to  the  legislatures, 
and  state  officers  rather  than  national  officers  were  to  pass  upon 
the  eligibility  of  persons  applying  for  pensions.  The  total 
amount  paid  out  by  a  state  for  such  purposes  was  to  be  deducted 
from  the  requisitions  of  Congress  upon  that  state.  It  is  to  be 
noticed,  however,  that  this  "deduction"  did  not  lessen  a  state's 
expenses,  for  the  requisitions  against  it  had  to  be  increased  pro- 
portionately. Instead  of  being  a  party  to  the  transaction,  and  of 
making  payments  directly  to  the  pensioners,  the  states  in  theory 
now  passed  the  money  over  to  Congress,  which  handed  it  back  to 
be  distributed.  In  this,  as  in  other  matters,  the  states  became 
the  agents  of  Congress  simply  because  the  Articles  of  Confedera- 
tion provided  no  point  of  contact  for  the  central  government  with 


THE    TR.\NSITIONAL    PERIOD,    1/88,    1789  IO3 

the  individual.  This  defect  was  remedied  in  the  Federal  Consti- 
tution, and  an  act  was  passed  in  the  first  session  of  Congress  pro- 
viding that  these  military  pensions  should  now  be  paid  by  the 
United  States  under  such  regulations  as  the  president  might  di- 
rect.*^ In  the  middle  of  October,  1789,  Secretary  of  War  Knox 
sent  out  a  circular  containing  the  regulations  under  which  the 
payments  were  to  be  made.  The  pensions  for  the  year  beginning 
March  4,  1789,  were  to  be  paid  in  two  instalments,  —  March  5, 
1790,  and  June  5,  1790.^*^  States  were  to  furnish  lists  of  their 
pensioners  before  the  first  payment  w(as  due.  A  second  circular 
was  issued  January  28,  1790,  giving  more  detailed  information 
as  to  the  places  of  payment,  and  naming  the  persons  who  were  to 
make  the  disbursements.^^ 

Both  by  the  maintenance  of  lighthouses  and  by  the  adminis- 
tration of  these  new  pension  laws  did  the  new  central  govern- 
ment impress  the  individual.  It  not  only  encountered  the 
individual  at  more  points  than  had  the  government  un- 
der the  Confederation,  but  it  demanded  a  greater  respect  than 
had  been  shown  its  predecessor.  It  was  to  be  satisfied  with  no 
divided  allegiance.  Its  Constitution  and  laws  were  to  be  supreme 
over  state  constitutions  and  laws,  and  to  insure  supremacy  state 
officers  were  to  be  bound  by  oath  to  give  proper  support.  The 
first  act  passed  by  Congress^^  prescribed  the  form  of  the  oath 
and  enacted  that  it  should  be  administered  to  persons  in  office 
within  one  month  after  the  first  of  the  following  August,  and 

^'♦This  law  provided  for  the  payment  only  from  March  4,  17S9,  to 
March  4,  1790,  but  subsequent  laws  extended  the  time  indefinitely. 

^This  long  delay  probably  produced  considerable  suffering,  to  alle- 
viate which  at  least  one  state,  Pennsylvania,  advanced  monthly  sums  to 
the  pensioners  during  the  winter  17S9-1790.  These  were  to  be  re-paid 
to  the  state  March  5,  1790.     Act  of  November  20,  1789. 

51  Maryland  Journal,  February  12,  1790. 

*2June  I,  1789.  An  act  to  regulate  the  time  and  manner  ot  adminis- 
tering certain  oaths.     Statutes  at  large,  I.  23. 


104  UNIVERSITY  OF  MISSOURI  STUDIES 

to  persons  thereafter  filling  the  offices  before  they  entered  upon 
their  duties. 

Five  months  before  the  passage  of  this  act  the  Connecticut 
assembly  had  taken  the  initiative  and  had  prescribed  an  oath  of 
fealty  to  the  new  Constitution.  This  was  the  only  legislature 
to  take  action  before  the  passage  of  the  Congressional  act.  The 
Connecticut  act  was  repealed  the  following  October  without  any 
explanation,  but  possibly  it  was  felt  that  the  act  of  Congress  was 
all-sufficient,  possibly  also  because  the  oath  prescribed  by  the  state 
was  slightly  different  from  that  of  Congress.  In  May  a  grand 
jury  of  Washington  county,  Virginia,  had  presented  as  a  griev- 
ance the  want  of  a  law  giving  the  form  of  an  oath  of  fidelity  to 
the  federal  government.  According  to  the  jury,  the  existing  offi- 
cers had  been  placed  in  a  serious  position;  no  oath  or  affirma- 
tion had  been  provided  by  the  last  assembly,  and  no  future 
assembly  could  remedy  the  evil  because,  they  said,  "we  find  they 
are  precluded  by  Article  ist  where  it  is  said,  'no  ex  post  facto 
law  shall  be  passed.'  "^^  No  remedy  was  suggested,  but  the  publi- 
cation of  the  Act  of  Congress  in  the  Virginia  papers  early  in  the 
following  July  probably  eased  the  minds  of  those  sticklers  of 
form. 

The  Act  of  Congress,  in  itself,  without  state  action,  was 
sufficient  to  carry  the  provision  of  the  Constitution  into  efifect. 
But  the  idea  that  the  state  governments  were  intermediary  be- 
tween Congress  and  the  people  could  not  be  uprooted  at  once. 
The  states  may  also  have  felt  that  no  outside  government  should 
be  permitted  to  prescribe  a  form  of  oath  for  state  officers  without 
consent  of  the  legislature.  Whatever  the  cause,  the  majority  of 
the  legislatures  re-enacted  the  federal  law.  New  York  made  the 
neglect  or  omission  of  the  oath  a  misdemeanor,  indictable  and 
punishable  by  fine  and  imprisonment.  On  the  other  hand,  the 
legislature  of  North  Carolina  in  1790  refused  by  a  large  niajority 
to  take  the  oath  to  the  national  Constitution.     The  New  Hamp- 

^  Pennsylvania  Packet,  June  30,  17S9. 


THE    TRANSITIONAL    PERIOD,    I788,    I789  I05 

shire  legislature  in  June,  1789,  re-enacted  the  Congressional  law. 
In  the  following  January  the  same  body  passed  an  interesting 
resolution,  showing  that  it  recognized  an  important  change  in 
the  character  of  the  state  government,  in  consequence  of  the 
change  in  the  national  government.  This  resolution,  after  stating 
that  the  adoption  of  the  Federal  Constitution  had  made  necessary 
some  alterations  in  the  oath  of  allegiance  to  the  state,  prescribed 
by  the  state  constitution,  directed  that  in  the  future  administra- 
tion of  the  oath,  the  word  "confederated"  be  substituted  for  the 
words  "sovereign  and  independent."^^  A  related  subject  to  the 
foregoing  was  the  question  of  the  eligibility  of  persons  to  hold 
ofifice  simultaneously  under  both  state  and  national  governments. 
Each  one  of  the  thirteen  states,  with  the  exception  of  Rhode 
Island,  passed  laws  or  resolutions,  or  incorporated  provisions  in 
the  state  constitutions  upon  this  subject,  and  usually  such  eligi- 
bility was  denied.  In  agitating  the  question  it  was  observed  that  a 
person  could  not  serve  "two  sovereign  organizations"  at  the  same 
time.  It  was  felt  too  that  certain  departments  of  government 
should  be  kept  separate,  and  the  danger  of  collision  between  the 
state  and  national  governments  was  dwelt  upon.  Of  more  opera- 
tive influence  was  the  simple  reason  that  a  man  could  not  be  in 
two  places  at  once  —  the  duties  of  one  office  would  interfere  with 
those  of  the  other.  Two  or  three  examples  of  state  action  will 
suffice  to  illustrate  the  general  feeling.  The  New  York  assembly 
passed  a  series  of  resolutions  in  January,  1790,  taking  the  singular 
and  untenable  position  that  it  was  incompatible  with  the  United 
States  Constitution  for  any  person  holding  an  office  under  the 
United  States  government  to  have  a  seat  at  the  same  time  in 
the  state  legislature.  This  action  rendered  vacant  the  seats  of 
four  state  senators,  among  them  United  States  District  Judge 
James  Duane.  and  United  States  Senator  Philip  Schuyler.  The 
mischievous  effect  of  this  form  of  plural  office  holding  was  ex- 
perienced by  the  first  Congress  in  the  case  of  Charles  Carroll, 

*^  State  Papers  of  New  Hampshire,  XXI.  726. 


I06  UNIVERSITY  OF  MISSOURI  STUDIES 

Senator  from  Maryland.  Carroll  was  also  a  member  of  the 
state  senate,  and  during  1790  and  1791  absented  himself  from 
Congress  during  the  early  winter  until  the  adjournment  of  the 
state  legislature.  Notwithstanding  his  vigorous  opposition,  the 
state  legislature  passed  an  act  in  December,  179 1,  incapacitating 
United  States  officers  and  members  of  Congress  from  holding 
office  under  the  Maryland  government.  From  Massachusetts  one 
of  the  first  representatives  to  Congress  was  a  probate  judge,  an- 
other was  a  sheriff.  Governor  Hancock,  at  a  loss  as  to  the  proper 
mode  of  procedure  in  such  cases,  sent  a  special  message  to  the 
legislature  asking  its  advice.  The  latter  replied  that  if  the  probate 
judge  continued  to  hold  both  his  offices  a  future  legislature  would 
authorize  the  governor  to  name  some  other  person  to  execute  the 
duties  of  the  office  of  probate  judge.  As  to  the  sheriff,  such  offi- 
cers were  removable  at  the  pleasure  of  the  executive,  and  there- 
fore the  legislature  declined  to  advise  the  governor  on  that 
point.^^  In  January,  1790,  after  a  long  debate  occasioned  by  a 
specific  case,  it  was  voted  by  a  large  majority  that  persons  holding 
government  offices,  similar  in  nature  to  those  state  offices  declared 
by  the  constitution  of  Massachusetts  incompatible  wuth  the  hold- 
ing of  seats  in  the  legislature,  could  have  no  constitutional  right  to 
retain  their  seats. ^^  Perhaps  the  most  interesting  debate  occurred 
in  1 79 1,  when  David  ScAVall,  United  States  District  Judge,  ap- 
peared to  claim  his  seat  as  a  duly  elected  member  of  the  legisla- 
ture from  York.  In  the  course  of  the  consideration  of  his 
eligibility,  it  was  held  that  he  occupied  a  place  of  profit  and  trust 
under  a  foreign  government,  and  for  this  reason,  and  the  addi- 
tional one  that  the  legislature  and  judiciary  should  be  kept  separ- 
ate, Sewall  was  excluded  by  an  almost  unanimous  vote.^~ 

''•"'Laws  and  Resolves  of  Massachusetts,  17S8-17S9,  p.  744. 

*6  Massachusetts  Centinel,  January  23,  1790. 

•'•^Dunlap's  American  Daily  Advertiser,   February  14,  17,  1791. 


BIBLIOGRAPHY 

SOURCE  MATERIAL 

I.  Laws.  First  in  importance,  as  furnishing  the  background  for  the 
monograph,  were  the  Session  Laws  of  the  several  states.  Of  these,  the 
Charlemagne  Tower  Collection  in  the  Library  of  the  Historical  Society  of 
Pennsylvania  contains  the  most  complete  file  for  this  period  and  was  used 
constantly.  The  Law  Division  of  the  Library  of  Congress  was  also  used  ex- 
tensively. Other  collections  which  afforded  material  were  the  Law  Librarv 
of  Philadelphia,  the  Library  of  the  Law  School  of  the  University  of  Chi- 
cago, aud  the  Law  Institute  of  Chicago. 

II.  Official  publications  exclusive  of  laws.  These  include  the  Jour- 
nals and  Minutes  of  the  several  state  assemblies,  reports  of  state  legislative 
committees,  Journals  of  the  two  Houses  of  Congress,  and  reports  of  various 
officials  and  committees  to  Congress.  Not  all  of  the  state  legislatures 
printed  their  Journals  from  session  to  session,  but  more  recently  several  of 
the  states  have  printed  large  collections  of  invaluable  historical  material, 
including  legislative  Journals,  calendars  of  documents,  official   letters,  etc. 

III.  Newspapers.  The  contemporary  newspapers  of  the  transitional 
period  have  furnished  the  writer  much  of  his  illustrative  material.  In  ad- 
dition, the  newspapers  frequently  contain  fuller  reports  of  legislative  meet- 
ings than  can  be  found  in  official  publications.  The  writer  has  examined 
the  files  in  the  possession  of  the  American  Antiquarian  Society  at  Worces- 
ter, those  of  Harvard  University  Library,  of  the  Boston  Public  Library,  of 
the  Library  of  the  Rhode  Island  Historical  Society,  of  the  New  Jersey  State 
Library,  of  the  Library  of  the  Historical  Society  of  Pennsylvania,  and  of 
the  Library  of  Congress. 

IV.  Collections  of  Correspondence.  Valuable  additions  to  the  illus- 
trative material  and  explanations  ot  various  political  activities  were  obtain- 
ed from  this  source.     The  principal  collections  used  were  as  follows: 

Conway,  Moncure  Daniel.  Omitted  chapters  of  history  disclosed  in 
the  life  and  papers  of  Edmund  Randolph.     New  York,  i88S. 

Hamilton,  Alexander  (Complete  works  of).  Edited  by  H.  C.  Lodge. 
12  vols.  New  York,  1904. 

King,  Rufus  (Life  and  correspondence  of).  Edited  by  C.  R.  King.  6 
vols.     New  York,  1S94-1900. 

Madison,  James  (Writings  of).  Edited  by  Gaiilard  Hunt.  vol.  i.  New 
York,  1900,  etc. 

Monroe,  James  (Writings  of).  Edited  by  S.  M.  Hamilton.  7  vols.  New- 
York,  1898-1903. 

Washington,  George  (Writings  of).  Edited  by  W.  C.  Ford.  14  vols. 
1889-93. 

107 


I08  UNIVERSITY  OF  MISSOURI  STUDIES 

V.  Manuscript  Material.  Unpublished  letters  in  the  Treasury  De- 
partment at  Washington  threw  additional  light  on  the  revenue  affairs  of 
1789,  and  on  the  finances  during  the  few  months  of  transition.  The  report 
of  the  Board  of  Treasury  to  Washington,  (called  for  in  June,  1789), 
is  among  the  Washington  papers  in  the  Division  of  Manuscripts  of  the 
Library  of  Congress,  and  shows  the  condition  of  the  finances  at  the  be- 
ginning of  the  first  administration. 

VI.  Miscellaneous.  A  number  of  works  which  cannot  be  classed 
among  the  foregoing,  but  which  have  been  of  value  in  furnishing  source 
material,  are  in  part  the  following: 

Lloyd,  Thomas.     Congressional  register.    New  York,  1789. 

Lloyd,  Thomas.     Debates  of  the  general  assembly  of  Pennsylvania. 

Maclay,  William.  (The  journal  of).  Edited  by  Edgar  S.  Maclay, 
New  York,  1S90. 

Street,  Alfred  B.  The  Council  of  revision  of  the  state  of  New 
York,  Albany,  1859. 

United  States.     Annals  of  Congress. 

SECONDARY  WORKS     (In  part) 

Bayley,  Rafael  A.  National  loans  of  the  United  States.  2nd  Ed. 
Washington,  1882. 

Dougherty,  J.  H.  The  electorial  system  of  the  United  States.  New 
York  and  London.      1906. 

Hammond,  J.  D.  History  of  political  parties  in  the  state  of  New  York, 
1 788-1840.   2  vols.    Buffalo,  1850. 

Staples,  W.  R.  Rhode  Island  in  the  continental  congress.  Providence, 
1870. 

Sumner,  W,  G.  The  financier  and  the  finances  of  the  American  revo' 
lution.    2  vols.    New  York,  1S91. 

TowNSEND,  W.  K.  Admiralty,  1701-1901.  Yale  bi-centennial  publi" 
cations.     Two  Centuries  Growth  of  American  Law.       New  York.      1902. 


INDEX 


Adams,  John,  2  (note). 

Adams,  Samuel,  candidate  for  Congress  from  Massachusetts,  57- 

Adgate, ,  member  of  New  York  assembly,  24. 

Admiralty  courts,  97-99- 

discontinued  by  Pennsylvania,  98. 
discontinued  by  Virginia,  99. 
Allison,  John,  nominee  tor  Congress  from  Pennsylvania,  ^6. 
Ames,  Fisher,  elected  to  Congress  from  Massachusetts,  57- 
Annapolis,  proposed  seat  of  federal  government,  6. 

Federal  caucus  at,  47. 
Antifederal  party,  gains  advantages  from  delay  in  17S8,  S. 
elects  senators  from  Virginia,  17,  iS. 
strong  in  sections  of  Pennsylvania,  32. 

holds  state  convention  at  Harrisburg,  Pennsylvania,  17^6,  34,  7S- 
in  minority  but  active  in  Maryland,  47-49- 
Maryland  law  works  against,  50. 

elects  four  representatives  from  South  Carolina,  51,  52- 
controls  lower  house  of  New  York  legislature  in  1788,  54,  74- 
loses  ground  in  the  New  York  elections,  54,  55- 
controls  Virginia  assembly,  59,  70- 
nominates  Monroe  to  oppose  Madison,  62. 
strength  declines  in  Massachusetts,  56. 

supposed  plan  to  carry  presidential  election,  77-  ,        •       ,0 

discouraged  by   result   of  congressional  election   tn   Pennsylvania,   78 
(note). 
Appointments  of  revenue  officials,  91,  92. 
Articles  of  Confederation,  attempts  to  amend,  1,2. 

relations  between  states  and  central  government  under,  84. 
and  naturalization,  99. 
monetary  provisions,  100. 

provide  no  contact  of  central  government  with  md.v.dual,  102. 
Ashe,  J.  B.,  elected  to  Congress  from  North  Carolina,  64. 
Atherton,  Joshua,  candidate  for  Congress  from  New  Hampshire,  39- 
Bailey,  T.,  candidate  for  Congress  from  New  York,  55  (note). 
(109) 


no  UNIVERSITY   OF  MISSOURI   STUDIES 

Baldwin,  Abraham,  3. 

elected  representative  irom  Georgia,  51. 
Baltimore,  proposed  seat  of  federal  government  in  17SS,  4,  5. 

Federal  meeting  at,  48. 
Banning,  John,  presidential  elector  from  Delaware,  79. 
Bartlett,  Josiah,  elected  senator  from  Xew  Hampshire,  18. 

declines  to  serve,  18. 
Basset,  Richard,  elected  senator  from  Delaware,  16. 
Bedford,  Gunning,  nominee  for  senator  from  Delaware,  16. 

candidate  for  Congress  from  Delaware,  63  (note). 

presidential  elector,  79. 
Belknap,  Jeremy,  33. 
Bellows,  General,   candidate  for  presidential  elector  in   New  Hampshire, 

80  (note). 
Benson,  Egbert,  elected  to  Congress  from  New  York,  55. 
Berkshire  county,   Massachusetts,  opposes  mode  of  congressional  election, 

56. 
Bishop,  Phanuel,  candidate  for  Congress  from  Massachusetts,  56  (note). 
Bland,  Theodoric,  elected  to  Congress  from  Virginia,  60,  63  (note). 
Bloodworth,  Timothy,  elected  to  Congress  from  North  Carolina,  65, 
Boudinot,  Elias,  nominee  for  senator  from  New  Jersey,  20,  21. 

elected  to  Congress  from  New  Jersey,  40-43. 
Bourne,  Benjamin,  elected  to  Congress  from  Rhode  Island,  65,  66. 
Brooks,   General  J.,    candidate  for   Congress  from    Massachusetts,   57,    s^ 

(note). 
Brown,  John,  elected  to  Congress  from  Kentucky  district,  63  (note). 
Burke,  Aedanus,  elected  to  Congress  from  South  Carolina,  52. 
Butler,  Pierce,  elected  senator  from  South  Carolina,  22. 

Cabell,  Colonel  (Samuel  J.),  candidate  for  presidential   elector  from  Vir- 
ginia. 77. 
Cadwalader,    Lambert,   candidate   tor   Congress  on  West  Jersey  ticket,  40, 
43  (note). 

declared  elected,  43. 
Camden  district.  South  Carolina,  elects  Thomas  Sumter  to  Congress,  52. 
Carrington,  (Edward),  member  of  Congress,  3. 

friend  of  Madison,  17. 
Carroll,  Charles,  elected  senator  from  Maryland,  21,  22. 

plural  office-holder,  105,  106. 


THE    TRANSITIONAL    PERIOD,     17SS,     1 7S9  III 

Carroll,  Daniel,  candidate  for  Congress  from  Maryland,  48  (note), 
elected,  49. 
probable  election  even  had  the  law  been  changed,  50. 

Caucus,  secret,  in  New  Jersey,  40. 

antedated  Maryland  caucus,  41  (note). 
in  Maryland,  47. 
Chambers,  Stephen,  candidate  for  Congress  from  Pennsylvania,  36. 
Chester,  John,  candidate  for  Congress  from  Connecticut,  38  fnote). 
Citizenship  in  the  United  States,  methods  of  acquiring,  53. 
Clark,  Abraham,  nominee  for  senator  from  New  Jersey,  20,  21. 
in  the  congressional  election,  43  (note), 
contests  the  New  Jersey  election,  44. 
Clayton,  Joshua,  candidate  for  Congress  from  Delaware,  63  (note). 
Clinton,  Governor  George,  re-elected  governor  of  New  York,  17S9,  26. 
convenes  assembly  in  special  session,  26. 
message  to  assembly  relative  to  presidential  electors,  74. 
mentioned  for  the  vice-presidency,  77. 
receives  three  votes,  83. 
Clymer,  George,  candidate  for  Congress  from  Pennsylvania,  36. 

elected,  36,  37. 
Coleman,  Robert,  nominee  for  senator  from  Pennsylvania,  15. 
Coles,  Isaac,  elected  to  Congress  from  Virginia,  60,  63  (note). 
Comstock,  Job,  candidate  for  Congress  from  Rhode  Island,  65. 
Congress,  under  the  Confederation,  fails  to  secure  right  of  taxation,  2. 
attitude  towards  the  new  Constitution,  2  (note), 
transmits  the  Constitution  to  the  states,  2. 

provides  details  for  putting  the  new  government  into  operation,  3-9. 
poor  method  of  voting,  4. 

method  of  election  of  members  from  New  York,  24. 
from  New  Hampshire,  72  (note), 
power  over  monetary  matters,  100,  loi. 
recommends  military  pensions,  102. 
Con-ress,  under  the  Constitution,  should  decide  on  permanent  capital,    5- 
tttempt  to  force  a  call  for  a  second  general  convention,  i6. 
judges  the  qualifications  of  members,  32. 

proposed  qualifications  of  members  from  Pennsylvania,  35,  3^'- 
proper  persons  to  send  to,  41. 

asked  to  throw  out  the  New  Jersey  election,  43-46. 
case  of  Smith  vs.  Ramsey,  52,  53. 
and  the  appointment  of  presidential  electors,  67. 
probable  attitude  toward  New  York  election,  76. 


112  UNIVERSITY    OF    MISSOURI    STUDIES 

power  over  revenue,  S7-90. 

passes  first  national  revenue  measures,  90,  91. 

passes  naturalization  law,  99,  100. 

monetary  powers,  100,  101. 

passes  act  relative  to  light  houses,  loi. 

provides  military  pensions,  103. 

prescribes  form  of  oath  for  officers,  103,  104. 
Connecticut,  election  of  United  States  senators,  16. 

election  of  members  of  Congress,  37,  38. 

scant  material  on  the  congressional  election,  37,  51. 

appointment  of  presidential  electors,  73,  87. 

has  free  trade  after  January,  1789,  89. 

national  tariff  goes  into  effect  in,  93  (note). 

suspends  license  to  manufacture  coin,  100  (note). 

prescribes  a  form  of  oath  to  the  federal  Constitution,  104. 
Constitution  of  the  United  States,  provision  for  ratification,  2. 

is  transmitted  to  Congress,  2. 

supporters  promote  delay,  4- 

not  ratified  by  North  Carolina  in  1788,  6. 

attempt  to  thwart  by  calling  a  second  general  convention,  16. 

provision  as  to  choice  of  senators,  19. 

carried  into  effect  in  New  Jersey,  20. 

favored  by  new  senators  from  South  Carolina  and  Georgia,  22. 

ratified  by  North  Carolina,  November  21,  17S9,  28. 

provisions  as  to  choice  of  representatives,  31,  32. 

revision  discussed,  34. 

defects  of,  34. 

opposed  because  of  slavery  provisions,  39. 

ratified  unanimously  in  Georgia,  51  (note) 

how  ratified  in  Massachusetts,  56. 

question  of  adoption,  76. 

changes  relations  between  states  and  general  government,  84. 

revenue  provisions,  87. 

effect  on  state  revenue  laws,  S7-89,  95. 

effect  on  state  admiralty  courts,  97. 

provision  as  to  naturalization,  99. 

monetary  provisions,  100. 

supreme  over  state  laws  and  constitutions,  103. 
Contee,  Benjamin,  elected  to  Congress  from  Maryland,  48  (note),  49. 
Contested  elections.  New  Jersey  case,  43-46. 

William  Smith  case,  52,  53. 
Conventions,  political,  in  Pennsylvania,  33-36. 


THE    TRANSITIONAL    PERIOD,     I7S8,     17S9  II3 

Convention  of  17S7,  i. 

transmits  Constitution  to  Congress,  2. 
Convention,  movement  for  a  second,  16. 
Corbin,  George,  friend  of  Madison,  17. 

attornej-general  of  Virginia,  SS. 
Council  of  Revision  of  New  York,  26,  27. 
Cox,  John,  candidate  for  Congress  from  New  Jersey,  41. 
Cumberland  county,  Pennsylvania,  in  the  congressional  election,  36. 
Dalton,  Tristram,  nominee  for  senator  from  Massachusetts,  19. 

elected  senator,  20. 
Dane,  Nathan,  nominee  for  senator  from  Massachusetts,  20. 
Dawes  (of  Massachusetts),  member  of  assembly,  19. 

Dayton,  Jonathan,  candidate  for  Congress  from  New  Jersey,  41,  4"^  (note). 
Deadlock  in  Pennsylvania  assembly  over  election  of  senator,  11-16. 

in  Massachusetts  assembly,  19. 

in  New  York  assembly,  32-25. 

in  New  Hampshire  assembly.  So. 
Decimal  system  in  coinage  of  money,  loi. 
Delany,  Sharp,  revenue  collector  in  Pennsylvania,  94-96. 
Delaware,  first  state  to  ratify  Constitution,  3. 

on  the  location  of  a  national  capital,  4,  7,  8. 

election  of  senator  from,  16. 

election  of  representative  from,  63,  64. 

appointment  of  presidential  electors,  69,  73  (note),  79. 

free  trade  in,  after  separation  from  England,  85. 

national  tariff  act  goes  into  effect  in,  93  (note). 

cedes  light  houses  to  central  government,  102. 
Dent,  George,  candidate  for  Congress  from  Maryland,  47  (note),  50. 
District   vs.    general    ticket    systems   for   the   election     of   United  States 

representatives,  31. 
Duane,  James,  member  of  New  York  assembly,  24. 

nominee  for  senator  from  New  York,  28. 

excluded  from  state  senate,  105. 
Edwards  (Pierrepont),  in  Congress,  3. 
Election  of  United  States   senators,  10-30. 
Election  of  United  States  representatives,  31-66. 

variety  of  laws  for,  32. 

time  in  the  several  states,  66  (note). 

law  for,  in  Pennsylvania,  33. 

in  Connecticut,  37. 


114  UNIVERSITV'    OF    MISSOURI    STUDIES 

in  New  Hampshire,  3S. 

in  New  Jersey,  39,  40, 

in  Maryland,  47. 

in  Georgia,  50. 

in  South  Carolina,  51. 

in  New  York,  54. 

in  Massachusetts,  55,  i)6. 

in  Virginia,  59,  60. 

in  Delaware,  63. 

in  North  Carolina,  64. 

in  Rhode  Island,  65. 

summary  of  laws,  66. 
Electioneering  despised  in  Massachusetts,  56. 
Electors,  presidential,  (^see  presidential  electors). 
Eli2abelhtown,  meeting-place  of  New  Jersey  council,  42. 
Ellis,  Joseph,  candidate  for  Congress  from  New  Jersey,  41. 
Ellsworth,  Oliver,  elected  senator  from  Connecticut,  16. 
Elmer,  Jonathan,  elected  senator  from  New  Jersey,  20,  21. 
Essex  county.  New  Jersey,  in  the  congressional  election,  42,  43. 
Faw,  A.,  candidate  for  Congress  from  Maryland,  47  (note). 

probably  a  Federalist,  48  (note). 
Fayette  county,  Pennsylvania,  has  no  interest  in  presidential  election,   7S. 
Federal  party,  nominates  Madison  as  senator  from  Virginia,  16. 

is  strong  in  Pennsylvania  in  1788,  32. 

holds  state  convention  in  Pennsylvania,  34-36. 

wins  election  in  Pennsylvania,  36,  37. 

manipulates  election  law  in  Maryland,  50. 

elects  four  congressmen  from  New  York,  55. 

stronger  over  Virginia  than  in  the  state  assembly,  70. 

holds  majority  in  New  York  senate,  74. 

Lancaster  convention,  77. 

Few,  William,  elected  senator  from  Georgia,  22. 

Findley,  William,  candidate  for  Congress  from  Pennsylvania,  34. 

Fishbourn,  Benjamin,  non-confirmed  by  United  States  Senate,  92. 

Fitzsimons,  Thomas,  elected  to  Congress  from  Pennsylvania,  36,  37. 

Floyd,  William,  elected  to  Congress  from  New  York,  54,  55. 

Forrest,  Uriah,  nominee  for  senator  from  Maryland,  21,  22. 

Foster,  Abiel,  candidate  for  Congress  from  New  Hampshire,  38  (note). 

elected  to  fill  vacancy,  39,  39  (note). 
Foster,  Theodore,  elected  senator  from  Rhode  Island,  29. 


THE    TRANSITIONAL    PERIOD      17SS,     1 789  I15 

Free   trade,  in  Delaware  after  separation  from  England,  85. 

in  New  Jersey  since  1783,  85. 

an  interval  of,  87. 
in  Connecticut  in  1789,  89. 
Gale,  George,  nominee  for  senator  from  Maryland.  21,  22. 

elected  to  Congress  from  Maryland,  48-50. 
Gallatin,  Albert,  in  the  Pennsylvania  assembly,  12. 

elected  senator  from  Maryland,  15. 

declared  ineligible  to  sit  in  Senate,  15. 
General    ticket   vs.    district    systems    for    the    election    of    United     States 

representatives,  31. 
Georgia,  proposed  time  for  the  appointment  of  electors  in,  3. 

attitude  of  delegates  in  178S  on  location  of  national  capital,  6,  8. 

election  of  senators,  22. 

assembly  composed  of  a  single  house,  30. 

election  of  representatives,  50,  51. 

unanimous  ratification  of  the  constitution,  51  (note). 

passes  no  law  for  the  appointment  of  presidential  electors,  73. 

appointment  of  presidential  electors,  81,  82. 

casting  of  electoral  vote,  S3. 

tonnage  duties,  86,  87. 

revenue  law,  90. 

national  tariff  act  takes  effect  in,  93  (note). 
German  voters  in  Pennsylvania,  36,  37. 

Gerry,  Elbridge,  elected  to  Congress  from  Massachusetts,  57,  58. 
Gerrymandering  in  Virginia,  61  (note). 

Gilman,  Nicholas,  elected  to  Congress  from  New  Hampshire,  38,  39. 
Goodhue,  Benjamin,  elected  to  Congress  from  Massachusetts,  58. 
Gorham,    Nathaniel,    candidate   for   Congress  from   Massachusetts,  57,  58 
(note). 

withdraws  candidacy,  58. 
Grayson,  William,  elected  senator  from  Virginia,  17,  18. 
Great  Britain,  tariff  discrimination  against,  85,  86. 
Griffin,  Samuel,  elected  to  Congress  from  Virginia,  63  (note). 
Grout.  Jonathan,  elected  to  Congress  from  Massachusetts,  58. 
Gunn,  James,  elected  senator  from  Georgia,  22. 
Hamilton,  Alexander,  on  the  location  of  the  seat  of  government,  7. 

on  the  appointment  of  electors  in  New  York,  75  (note). 

Secretary  of  the  Treasury,  93. 

enforces  revenue  laws,  97. 

funding  measure,  100. 
Hancock,    Governor    John,   asks  advice   of   assembly    as   to    plural    office- 
holding,  106. 


Il6  UNIVERSITY    OF    MISSOURI    STUDIES 

Harrisburg,  Pennsylvania,  Antifederal   convention  held  in  178S,  34,  78. 

ticket  is  beaten,  36. 
Harrison,  Benjamin,  application  for  office,  92. 
Hartley,  Thomas,  elected  to  Congress  from  Pennsylvania,  36,  37. 
Hathorn,  John,  elected  to  Congress  from  New  York,  55. 
Hawkins,  Benjamin,  elected  senator  from  North  Carolina,  29. 
Heath,  General,  candidate  for  Congress  from  Massachusetts,  57. 
Heister,  Daniel,  elected  to  Congress  from  Pennsylvania,  34,  36,  37. 
Henderson,  Thomas,  candidate  for  Congress  from  New  Jersey,  41. 
Henry,  John,  elected  senator  from  Maryland,  21,  22. 
Henry,  Patrick,  and  the  election  of  senators  from  Virginia,  16-1S. 

attempts  to  defeat  Madison  for  Congress,  6r. 

elected  presidential  elector  from  Virginia,  77. 

mentioned  for  President,  77. 
Hillhouse,  James,  candidate  for  Congress  from  Connecticut,  38  (note). 
Hoops  (of  New  Jersey),  votes  received  in  the   congressional   election,  43 

(note). 
Hopkinson,  Francis,  judge  of  Pennsylvania  admiralty  court,  98,  99. 
Huger,  Daniel,  elected  to  Congress  from  South  Carolina,  52. 
Huntington,  Benjamin,  elected  to  Congress  from  Connecticut,  38. 
Instructions  to  United  States  senators,  Madison  might  not  obey,  17. 
Inter-state  trade,  85. 
Irvine,  General  William,  nominee  for  senator  from  Pennsylvania,  11. 

candidate  for  Congress,  34. 
Izard,  Ralph,  elected  senator  from  South  Carolina,  22. 
Jackson,  General  James,  elected  to  Congress  from  Georgia,  51. 
Jarvis,  Charles,  nominee  for  senator  from  Massachusetts,  19,  20. 
Jefferson,  Thomas,  44  (note). 

Joint  organization  of  the  New  Jersey  assembly,  20. 
Johnson,  William  S.,  elected  senator  from  Connecticut,  16. 
Johnston,  Samuel,  elected  senator  from  North  Carolina,  28. 
Jones  (of  New  York),  in  the  assembly,  24. 
Kello,  Samuel,  elector  for  Virginia,  82  (note). 
Kentucky  district,  against  the  constitution,  60  (note). 

elects  a  Federalist  to  Congress,  62. 
King,  Rufus,  elected  senator  from  New  York,  28. 
Knox,  Henry,  sends  out  pension  circulars,  103. 


THE    TRANSITIONAL    PERIOD,     I7S8,     1 7S9  II7 

Lancaster,  Pennsylvania,  proposed  seat  of  federal  government  in  1788,  4,  6. 

political  convention  at,  in  178S,  34-36,  77- 
Langdon,  John,  elected  senator  from  New  Hampshire,  iS. 
Latimer,  George,  35. 

Lawrence,  John,  elected  to  Congress  from  New  York,  55. 
Lee,  Arthur,  2  (note). 

collector  at  Alexandria,  Virginia,  96. 
Lee,  R.  B.,  Federalism  shown  by  private  letters,  62  (note). 

elected  to  Congress  from  Virginia,  63  (note). 
Lee,  R.  H.,  nominee  for  senator  from  Virginia,  17. 

elected,  iS. 
Leonard,  George,  elected  to  Congress  from  Massachusetts,  56,  57. 
Lewis,  Warner,  elector  for  Virginia,  82  (note). 
L'Hommedieu,  Ezra,  in  the  New  York  assembly,  24. 

nominee  for  senator  from  New  York,  28. 
Lighthouses  to  be  maintained  by  general  government,  loi,  102. 
Lindsay,  William,  succeeds  Parker  as  naval  officer,  92  (note). 
Livermore,  Samuel,    candidate   for    Congress   from   New    Hampshire,    38 
(note), 
elected,  39. 
Livingston,  B.,  member  of  New  York  assembly,  75. 
Livingston,  G.,  member  of  New  York  assembly,  24. 

Livingston,  Governor  William,  instructs  delegates  to  Congress  on  location 
of  capital,  7. 
issues  proclamation  declaring  results  of  Congressional  election,  43- 
Lowell,  John,  nominee  for  senator  from  Massachusetts,  19. 
Luzerne  county,  Pennsylvania,  unrepresented  in  state  convention  of  Fed- 
eralists, 36. 
Lvman,    William,    candidate    for    Congress    from    Massachusetts,    58,     59 

(note). 
McClenachan,  Blair,  candidate  for  Congress  from  Pennsylvania,  34. 
McLane,  Allen,  candidate  for  Congress  from  Delaware,  63.  (note). 
Maclay,  William,  elected  senator  from  Pennsylvania,  178S,  11. 
successor  to  be  chosen,  11-16. 
nominated  for  second  term,  i  v 
on  the  naturalization  law,  99,  100. 
Madison,  James,  on  the  location  of  the  national  capital  in  17SS,  S 
nominee  for  senator  from  Virginia,  16-1S. 
prefers  House  of  Representatives  to  the  Senate,  17. 


Il8  UXIVERSITO    OP^    MISSOURI    STUDIES 

on  the  New  Jersey  congressional  election,  44. 

defeated  in  the  senatorial  race,  18,  6r. 

candidate  for  Congress  from  Virginia,  61,  62. 

elected,  62,  63  (note). 

supporter  of  the  Constitution,  76. 

letter  from  Monroe  to,  88, 

proposes  a  temporary  tariff  act,  91. 
Martin,  Alexander,  governor  of  North  Carolina,  28  (notej. 
Maryland,  delegates  in  Congress  withdraw  *'in  a  temper,"  7. 

not  voting  in  location  of  capital,  8. 

election  of  senators,  21,  22. 

election  of  representatives,  46-50. 

committee  plan  of  election  of  representatives,  46,  47. 

state  convention,  47. 

analysis  of  the  vote  for  congressmen,  49. 

method  of  appointment  of  electors,  67,  70. 

choice  of  electors,  78,  79. 

casting  of  electoral  vote,  82. 

revenue  law,  85. 

national  tariff  act  in  effect  in,  93  (note). 

forbids  plural  office  holding,  106. 
Massachusetts,  proposed  time  tor  the  appointment  of  electors  in,  3. 

election  of  senators,  18-20. 

senators  chosen  by  concurrent  action  of  the  houses  of  assembly,  30. 

election  of  representatives,  55-59. 

report  of  assembly  committee,  55. 

method  of  appointment  of  electors,  72. 

comparison  with  New  Hampshire  method,  72. 

choice  of  electors,  79,  80. 

casting  of  electoral  vote,  82. 

revenue  law,  85,  86,  90. 

national  tariff  act  in  effect  in,  93  (note). 

excise  act,  100,  101. 

forbids  plural  office-holding,  106. 
Mathews,  George,  elected  to  Congress  from  Georgia,  51. 
Matthews,  Thomas,  candidate  for  Congress  from  Virginia,  60. 
Mercer,  J.  F.,  candidate  for  Congress  from  Maryland.  47  (note). 

candidacy  affected  by  peculiar  law,  50, 
Mifflin,  Governor,  and  the  senatorial  situation  in  Pennsylvania,  14. 
Miller,  Colonel  Henry,  nominee  for  senator  from  Pennsylvania,  15. 
Mitchell,  S.  M.,  candidate  for  Congress  from  Connecticut,  38  (note). 
Monetary  changes  in  17S9,  100,  loi. 


THE    TRANSITIONAL    PERIOD     I788,     1 7S9  119 

Monroe,  James,  candidate  for  Congress  from  Virginia,  61,  62. 
defeated  by  Madison,  62. 
on  the  state  revenue  law,  88,  89. 
Montgomery,  William,  candidate  for  Congress  from  Pennsylvania,  34- 
Moore,  A.,  elected  to  Congress  from  Virginia,  63  (note). 
Morris,  Robert,  elected  senator  from  Pennsylvania  in  1788,  n. 
Muhlenberg,  F.  A.,  candidate  for  Congress  from  Pennsylvania,  36' 

elected,  36,  37. 
Muhlenberg,  Peter,  candidate  for  Congress  from  Pennsylvania,  34.  36. 

elected,  36,  37. 
Murray,  W.  V.,  candidate  for  Congress  from  Maryland,  47  (note). 

probably  a  Federalist,  48  (note). 
Naturalization,  99. 

New  Hampshire,  ninth  state  to  ratify  Constitution,  3. 
election  of  senators,  18. 

choice  of  senators  is  by  concurrent  action,  30. 

election  of  representatives,  38,  39-  _       .  .«,    ^Wnnte^ 

method  of  certain  elections  under  state  constitution  ot  1784,  7^,  (note), 
method  of  appointment  of  electors,  71,  V- 
comparison  with  Massachusetts  method,  72- 
deadlock  in  assembly  over  choice  of  electors,  80,  81. 
revenue  law,  85. 

national  tariff  act  in  effect,  93  (note),  94  (note), 
lighthouses  in,  102. 

changes  form  ot  oath  of  allegiance  to  the  state,  105. 
New  Jersey,  attitude  of  delegates  in  1788  on  location  of  national  capital,  6, 

7- 

election  of  senators,  20,  21. 

election  of  representatives,  39-46. 

method  of  appointment  of  electors,  73. 

choice  of  electors,  81. 

allowed  free  trade  after  1783,  85. 

national  tariff  act  in  effect  in,  93  (note). 

paper  money  not  legal  tender,  100  (note). 

levies  tax  to  pay  debt,  loi. 
Newspapers,  clamor  over  delay  in  1788,  8,  9. 

activity  in  the  New  Jersey  election,  42. 
New  York,  election  of  senators,  22-28. 

Dolitical  complexion  of  assembly,  1788,  22,  74. 

constitutional    provision    for    conferences  between  the  two  houses  of 

assembly,  24.  ,  ,, 

debate  in  assembly  over  method  of  appointment  of  senators,  24,  -v 


I20  UNIVERSITY    OF    MISSOURI    STUDIES 

State  election  of  1789,  26. 

composition  of  Council  of  Revision,  26, 

Council  of  Revision  vetoes  act  of  the  assembly,  27. 

choice  of  senators  is  by  concurrent  action,  30. 

election  of  representatives,  54,  55. 

assembly  in  deadlock,  74-76. 

assembly  fails  to  provide  for  choice  of  electors,  73-76. 

no  part  in  first  presidential  election,  77,  78. 

custom  house  organized,  92. 

national  tariff  act  in  effect,  93  (note). 

lighthouses,  102. 

assembly  re-enacts  federal  law  proscribing  form  of  oath  of  allegiance, 
104. 

assembly  against  plural  ofiice-holding,  105. 
New  York  city,  seat  of  Congress,  1787,  2. 

candidate  for  seat  of  government  in  1788,  4-7. 

advantages  and  disadvantages  of,  5. 

accepted  as  temporary  seat  of  government,  8. 

repugnance  of  Virginia  delegates  to,  8. 
Ninety-six  district,  South  Carolina,  elects  Aedanus  Burke  to  Congress,  52. 
Nomination  system  of  Connecticut,  37,  39. 
Nomination  system  of  New  Jersey,  39. 
Northumberland  county,  Pennsylvania,  35. 

North  Carolina,  attitude  of  delegates  in  178S  on  location  of  national  capi- 
tal, 6. 

state  convention  in  178S  fails  to  ratify  federal  Constitution,  6. 

not  voting  in  location  of  capital,  8. 

unrepresented  in  first  session  of  Congress,  28,  64. 

ratifies  federal  Constitution,  17S9,  28,  64. 

election  of  senators,  28,  29. 

districts  for  first  congressional  election,  64,  65. 

election  of  representatives,  64,  65. 

revenue  law,  85. 

levies  tax  to  pay  debt,  loi. 

assembly  refuses  the  oath  to  the  federal  Constitution,  104. 
Oath  prescribed  by  Congress  for  officers,  103. 

prescribed  by  Connecticut,  104. 

lack  of,  a  grievance  in  Virginia,  104. 
Orne,  Azor,  nominee  for  senator  from  Massachusetts,  19. 
Osborne,  Henry,  candidate  for  Congress  from  Georgia,  51. 
Otis,  (Samuel  A.),  in  Congress,  3. 


THE    TRANSITIONAL    PERIOD     l7Si>,     1 789  121 

Page,  John,  friend  of  Madison,  17. 

elected  to  Congress  from  Virginia,  63  (note). 
Paine,  Timothy,  candidate  for  Congress  from  Massachusetts,  58. 
Parker,  Josiah,  elected  to  Congress  from  Virginia,  60,  63  (note). 

resigns  position  as  naval  officer,  60  (note),  92. 
Partridge,  George,  elected  to  Congress  from  Massachusetts,  57- 
Paterson,  William,  elected  senator  from  New  Jersey,  20,  21. 
Peabody,  Nathaniel,  candidate  for  senator  from  New  Hampshire,  18. 
Pendleton,  (Edmund),  8. 

Pennsylvania,    attitude   of   delegates    in    Congress  on  location  of  national, 
capital,  17S8,  7. 

unicameral  legislature,  10,  22,  30. 

political  complexion  of  assembly,  1791-1794.  H  (note). 

election  of  senators,  10-16. 

constitution  of  1790,  n- 

deadlock  in  assembly,  11-16. 

political  complexion  of  state,  1788,  32. 

election  of  representatives,  32-37. 

method  of  appointing  electors,  6S,  69. 

choice  of  electors,  77,  78. 

casting  of  electoral  vote,  82,  83. 

revenue  law,  88,  90,  94-96- 

national  tariff  act  in  effect,  93  (note). 

discontinues  admiralty  court,  98,  99. 

lighthouses,  102. 

advances  money  to  pensioners,  103  (note). 

Pensions,  military,  101-103. 

Pettit,  Charles,  candidate  for  Congress  from  Pennsylvania,  34. 

Philadelphia,  proposed  capital  in  17S8,  4. 

delegates  appointed  to  Federal  state  convention,  35. 
gives  Federalist  majority  in  congressional  election,  1788,  36. 
importations  of  merchants,  95,  96- 
Plater,  (George),  presidential  elector  for  Maryland,  82. 
Plural  office-holding,  105,  106. 
Political  parties,  difficulty  of  classification,   62  (note). 

in  17S9,  76. 
Potomac  river,  Virginia  delegates  favor  location  of  capital  on,  7. 
Poughkeepsie,  New  York,  seat  of  state  convention,  4- 
Presidential  electors,  proposed  time  for  appointment  of  first,  3. 
final  arrangements  for  first  appointment,  8. 


123  UNIVERSITY    OF    MISSOURI    STUDIES 

questions  involved  in  the  choice  of,  67. 

method  of  appointment  in  Pennsylvania,  68. 

in  Delaware,  69. 

in  Maryland,  69,  70. 

in  Virginia,  70,  71. 

in  New  Hampshire,  71,  72. 

in  Massachusetts,  71,  72. 

in  Georgia,  73. 

in  Connecticut,  73, 

in  South  Carolina,  73. 

in  New  Jersey,  73. 

summary  of  provisions  for  election  of,  83. 

Princeton,  meeting  place  of  New  Jersey  assembly  in  17S8,  40. 
Ramsay,  David,  contests  William  Smith's  election  to  Congress,  52,  53. 
Randolph,  Governor  Beverley,  proclamation  relative  to  import  duties,  96. 
Randolph,  Governor  Edmund,  letter  from  Madison  to,  17, 

describes  senatorial  nominations  in  Virginia,  17. 

at  first  opposes  federal  Constitution,  76. 

and  the  state  revenue  laws,  88. 
Reed,  George,  elected  senator  from  Delaware,  16. 
Representatives,  United  States,  distribution  of  membership,  5. 

methods  for  the  election,  31,  32. 

constitutional  provisions  relative  to  the  election,  31,  3:. 

first  election  of,  in  Pennsylvania,  3^-37. 

in  Connecticut,  37,  38. 

in  New  Hampshire,  38,  39. 

in  New  Jersey,  39-46. 

in  Maryland,  46-50. 

in  Georgia,  50,  51. 

in  South  Carolina,  51-53. 

in  New  York,  54,  55. 

in  Massachusetts,  55-59. 

in  Virginia,  59-62. 

in  Delaware,  63,  64. 

in  North  Carolina,  64,  65. 

in  Rhode  Island,  65,  66. 

summary  of  first  elections,  66. 
Revenue  laws  of  the  states  before  1789,  84-90. 

of  Massachusetts,  85,  86. 

of  Virginia,  85,  87  (notej  . 

of  North  Carolina,  85. 

of  New  Hampshire.  85. 


THE    TRANSITIONAL    PERIOD     1788,     1 7S9  123 

of  Pennsylvania,  S5. 
of  Maryland,  85. 
of  Rhode  Island,  86. 
of  South  Carolina,  86. 
Revisions  of  state  laws  and  constitutions,  84. 
Rhode  Island,  delegates  leave  Congress,  6. 

has  no  vote  on  location  of  national  capital  in  1788,  8. 
unrepresented  in  first  and  second  sessions  of  Congress,  28,  64. 
political  complexion  of  assembly,  29  (note), 
election  of  senators,  29. 
ratifies  federal  Constitution,  65. 
election  of  representatives,  65,  66. 
revenue  laws,  86. 

fails  to  forbid  plural  office-holding,  105. 
Richard,  Mr.,  presidential  elector  for  Maryland,  82. 
Richmond,  Virginia,  place  of  deposit  for  state  papers,  96. 
Root,  Jesse,  candidate  for  Congress  from  Connecticut,  38  (note). 
Ross,  James,  nominee  for  senator  from  Pennsylvania,  14,  I5- 

elected,  i.S- 
Rush,  Benjamin,  33  (note). 

Schureman,  James,  candidate  for  Congress  on  West  Jersey  ticket,  40,  43 
(note), 
declared  elected,  43. 
Schuyler,  Philip,  nominee  for  senator  from  New  York,  22,  23. 
in  a  conference  of  the  two  houses  of  assembly,  24. 
elected  senator  from  New  York,  28. 
excluded  from  state  senate,  105. 
Scott,  Thomas,  elected  to  Congress  from  Pennsylvania,  36,  37- 
Sedgwick,  Thomas,  elected  to  Congress  from  Massachusetts,  58,  59 
Senate,  United  States,  distribution  of  membership,  S- 
declares  Gallatin  ineligible  to  a  seat,  15. 
approves  list  of  appointments,  92. 
Senators,  United  States,  first  election,  10-30. 
election  attracts  little  attention,  10. 
methods  of  election,  10. 
first  election,  in  Pennsylvania,  10-16. 
in  Connecticut,  16. 
in  Delaware,  16. 
in  Virginia,  16-18. 
in  New  Hampshire,  iS 


124  UNIVERSITY    OF    MISSOURI    STUDIES 

in  Massachusetts,  iS-20. 

in  New  Jersey,  20,  21. 

in  Maryland,  21,  22. 

in  South  Carolina,  22. 

in  Georgia,  22. 

in  New  York,  22-2S. 

in  North  Carolina,  28,  29. 

in  Rhode  Island,  29. 
Seney,  Joshua,  candidate  for  Congress  from  Maryland,  47  (note). 

a  Federalist  on  the  Antifederalist  ticket,  48  (note). 

elected,  49. 

candidacy  unaffected  by  peculiar  Maryland  law,  50. 
Sevier,  John,  elected  to  Congress  from  North  Carolina,  65. 
Sewall,  David,  excluded  from  Massachusetts  assembly,  106. 
Shays'  Rebellion,  58. 

Sherman,  Roger,  elected  to  Congress  from  Connecticut,  38. 
Sinnickson,  Thomas,  candidate  for  Congress  on  West  Jersey  ticket,  40. 

declared  elected,  43. 
Sitgreaves,  Samuel,  nominee  for  senator  from  Pennsylvania,  15. 
Smith,  William,  elected  to  Congress  from  Maryland,  48  (note),  49. 
Smith,  William,  elected  to  Congress  from  South  Carolina,  52. 

contest  over  his  seat,  52,  53. 
Smugglers  convicted,  97. 

South  Carolina,  attitude  of  delegates  in  178S  on  location  of  national   cap- 
ital, 6. 

election  of  senators,  22. 

scarcity  of  material  on  political  situation  in  178S,  51. 

first  election  of  representatives,  51-53. 

election  of  Antifederalists  not  the  result  of  a  sudden  party  revolution, 
52  (note). 

mode  of  appointment  of  electors,  73. 

choice  of  electors,  82. 

revenue  law,  86. 

national  tariff  act  in  effect,  93  (note). 
Stanton,  Joseph,  elected  senator  from  Rhode  Island,  29. 

probable  politics,  29  (note). 
Stevens,  General,  elector  for  Virginia,  77. 
Steele,  John,  elected  to  Congress  from  North  Carolina,  65. 
Sterett,  Samuel,  candidate  for  Congress  from  Maryland,  47  (note). 

candidacy  affected  by  peculiar  Maryland  law,  50. 


THE    TRANSITIONAL    PERIOD     I78S,     1789  ^-5 

Stone,  M.  J.,  elected  to  Congress  from  Maryland,  4S  (note),  49- 

Strong   Caleb,  elected  senator  from  Massachusetts,  19. 

Strong!  Jedediah,  candidate  for  Congress  from  Connecticut,  3S  (note). 

Sturges,  Jonathan,  elected  to  Congress  from  Connecticut,  37,  38- 

Sullivan,  John,  candidate  for  Congress  from  New  Hampshire,  3S  (note). 

Sumter.  General  Thomas,  elected  to  Congress  from  South  Carolina,  52. 

Supreme  Executive  Council  of  Pennsylvania,  78. 

revenue  questions  settled  by,  94-96- 
Sylvester,  Peter,  elected  to  Congress  from  New  York,  55- 
Tariff  act,  first  national,  passed,  91. 

in  effect  in  the  various  states,  93  (note), 
strictly  enforced,  96,  97. 
Thacher,  George,  elected  to  Congress  from  Massachusetts,  57- 
Tonnage  duties  in  Georgia,  86,  87. 
Travelling  accommodations  poor  in  1788,  5. 

Treadwell,  John,  candidate  for  Congress  from  Connecticut,  38  (note). 
Treasury  department,  Hamilton  placed  at  head  of,  93- 
Trumbull,  Jonathan,  elected  to  Congress  from  Connecticut,  38. 
Tucker,  T.  T.,  member  of  committee  in  Congress,  3. 

elected  to  Congress  from  South  Carolina,  52. 
United  States  Congress,  (see  Congress). 

United  States  House  of  Representatives,  (see  Representatives). 
United  States  Senate,  (see  Senate). 

Van  Rensselaer,  Jeremiah,  elected  to  Congress  from  New  York,  55- 
Varnum,  J.  B.,  candidate  for  Congress  from  Massachusetts,  57,  sB  (note). 
Vining,  John,  candidate  for  Congress  from  Delaware,  63  (note). 

elected,  64. 
Virginia,  attitude  of  delegates  relative  to  location  of  capital,  178S,  7. 
delegates  dislike  of  New  York  city,  8. 
election  of  senators  from,  16-18. 
method  of  voting  for  senators,  iS  (note), 
election  of  representatives  from,  .'59-^2. 
political  sections  of  the  state,  60  (note), 
districting  for  the  first  congressional  election,  63  (note), 
mode  of  appointment  of  electors,  70,  71. 
choice  of  electors,  77. 
casting  of  electoral  vote,  82. 
revenue  laws,  85,  87  (note),  89,  96- 
effect  of  federal  Constitution  upon  revenue  laws,  88. 


126  UNIVERSITY    OF    MISSOURI    STUDIES 

national  tariff  act  goes  into  effect,  93  (note). 

admiralty  courts  discontinued,  99. 
Wadsworth,  Jeremiah,  elected  to  Congress  from  Connecticut,  3S. 
Ward,  Artemas,  candidate  for  Congress  from  Massachusetts,  58, 
Warren,  James,  candidate  for  Congress  from  iMassachusetts,  57. 
Washington,  George,  points  out  danger  of  delay  in  17SS,  S. 

receives  letter  from  Madison  describing  the  New  Jersey  election,  44. 

is  the  general  choice  for  president,  77. 

Georgia  electors  favor,  83. 

besieged  by  office-seekers,  91,  92. 

submits  a  list  of  appointments,  92. 

appoints  Hopkinson  district  judge,  98. 

recommends  a  naturalization  law,  99. 
W^ashington  county,  Maryland,  49  (note). 
Washington  county,  Virginia,  104. 
Watts,  (John),  member  of  New  York  assembly,  76. 
West,  Benjamin,  candidate  for  Congress  from  New  Hampshire,  38. 

elected  but  resigns,  39. 
West  Indian  trade,  confined  to  British  shipping,  85. 
West  Jersey  ticket,  40-44. 

Whig  ticket,  name  given  the  Antifederalist  ticket  in  Pennsylvania,  34. 
White,  Alexander,  friend  of  Madison,  17. 

elected  to  Congress  from  Virginia,  63  (note). 
Whitehill,  Robert,  candidate  for  Congress  from  Pennsylvania,  34,  36. 
Williamson,  Hugh,  elected  to  Congress  from  North  Carolina,  64. 
Wilmington,  Delaware,  proposed  seat  of  federal  government  in  1788,  4, 
Wilson,  James,  delegate  to  a  state  convention,  35. 
Wingate,  Paine,  elected  senator  from  New  Hampshire,  18. 

candidate  for  Congress,  38  (note). 
Wolcott,  Erastus,  candidate  for  Congress  from  Connecticut,  38  (note). 
Wynkoop,  Henry,  elected  to  Congress  from  Pennsylvania,  36,  37. 
Yates,  Robert,  nominee  for  senator  from  New  York,  23. 


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